Famous Trials Project
Worcester v. State of Georgia
James Fournier and Ken Ollison
Introduction
Chronology
Maps
Selected Images
Treaty of Hopewell, 1785
Cherokee Constitution, 1827
Indian Removal Act, 1830
Worcester v. Georgia, 1832
Treaty of New Echota, 1836
Letters
Post Trial Events
.
Introduction
In the early 1800's the basic policy of the United States government regarding native
Americans was to remove the Indian population from areas, or potential areas, of white
settlement. The most thoroughly documented instance of this policy and its
consequences is the removal of the Cherokee Indians from their homelands in the
southeastern states of Tennessee, Alabama, North Carolina, and Georgia.
President Thomas Jefferson suggested in 1803, shortly after the purchase of the
Louisiana Territory, that treaty arrangements be reached with the Cherokee and the
other tribes of the southeast that would provide for removal of the Indians to new lands
west of the Mississippi. Unexplored and deemed unsuitable for white settlement, these
lands seemed perfectly suited for ridding the new nation of its Indian problem. Two
such treaties were eventually negotiated and approximately one-third of the Cherokee
population made the migration west by 1820. However, during the administrations of
James Monroe and John Quincy Adams, the federal government adopted a more
sympathetic policy towards the native tribes of the southeast, encouraging missionary
efforts to "civilize" them, and recognizing more extensive rights of Indians over tribal
lands. Missionary efforts among the Cherokee were particularly significant. Missions
from a variety of Protestant denominations were established. Tribal schools were
started as was a tribal newspaper written in both English and Cherokee. Some
Cherokee children were brought north to be educated in private schools. And there
were several marriages between Cherokee men and the daughters of church leaders.
The ties thus established proved a powerful, albeit inadequate, source of political and
moral leverage when the national debate over Indian removal reached a climax in the
early 1830s.
Substantial conflict with the state government of Georgia developed as the federal
government took the Cherokee side against encroachment by white settlers on Indian
land. The discovery of gold in northern Georgia in 1828 and pressure for the availability
of more land to settle the growing white population contributed to more local agitation
for Indian removal. The governor and Georgia congressional delegation actively
pressed the case for Indian removal and western expansion. State laws were enacted
that effectively destroyed Cherokee self-government. And with the election of Andrew
Jackson as President in 1828 the expansionists gained a sympathetic and powerful ear
in Washington. Jacksonian Democrats prevailed by a single vote in Congress in 1830
with the passage of the Indian Removal Act and again when President Jackson
ignored the Supreme Court decision written by Chief Justice Marshall in the case of
Worchester vs. the State of Georgia that declared void Georgia's legal rights over the
Cherokee. In 1835 the Treaty of New Echota was signed by a small party of Cherokee
leaders forcing the tribe to cede their lands and remove to the West. Though there
were several delays, the removal of the Cherokee from Georgia, Tennessee, North
Carolina, and Alabama along what has come to be known as the Trail of Tears was
completed by 1839.
Chronology of Indian Removal
1600s
Spanish, French,English explorers, and traders start to come into Cherokee Territory.
1730
Cherokee leaders visit England.
1754
Nanye hi becomes a Beloved Woman to her people after challenging the Cherokees in a battle
against the Creeks.
17561763
1776
17801820
1821
Cherokees fight in the French and Indian war (against the British.)
Cherokees are again enemies against the British in the American Revolution.
Cherokees sign more treaties leaving their land to the United States.
The Cherokee syllabary is finished by Sequoyah.
1827
Cherokees draft a constitution declaring themselves a nation.
1828
The Cherokee Phoenix is published, Andrew Jackson becomes president of the United States, and
John Ross becomes Principal Chief.
1830
The Indian Removal Act is passed.
1835
The Treaty of New Echota is signed declaring all of the Cherokee land east of the Mississippi River
to the U.S. government. It was signed by Major Ridge and a small group of Cherokees.
1838
The Trail of Tears started because Cherokees are forced off their land to Indian Territory.
1839
A new capital is established by the Cherokee Nation in what is now known as Oklahoma.
1861
At Park Hill a Treaty is signed between the Confederate government and the Cherokee Nation.
1866-1867
They negotiate peace with the U.S. government. Tribal and land rights treaty is signed. John Ross
dies.
http://library.thinkquest.org/J0110325/timeline.htm
Maps Relating to the Trial of Worcestor v. Georgia
Map of Land Lottery of Cherokee Land Georgia 1838
http://www.intimeandplace.org/cherokee/images/images/roycemap.html
1827 Constitution of the Cherokee Nation
[added: 1] We the Representatives of the people of the Cherokee Nation , in Convention assembled in order to
establish justice ensure tranquility, promote our common welfare, and secure to ourselves and our posterity
the blessings of liberty acknowledging with humility and gratitude the goodness of the sovereign ruler of the
Universe offording [affording] us an opportunity so favorable to the design and imploring his aid and direction
in its accomplishments do ordain and establish this Constitution for the Government of the Cherokee Nation.
Article 1st.
The boundaries of this nation embracing the lands solemnly guaranteed and reserved forever to the Cherokee
Nation the treaties concluded with the United States is as follows, and which shall forever hereafter remain
unalterably the same; To wit: Beginning on the north bank of Tennessee River at the uper [upper] part of the
Chickasaw Old Fields thence along the main Channel of said River [added: including] all the islands therein to
the mouth of Highwassee River thence up the main channel of said river including Islands to the first Hill which
closes in on said river about two miles above highwassee Old Town thence along the ridge which divides the
waters of the highwassee Little Tellico , to the Tennessee river at Tallassee thence along the main channel
including Islands to the junction of Cowee & Nonteyalee thence along the ridge in the fork of
said river to the top of the blue ridge, thence along the blue ridge to the Unicoy Turnpike road thence a
straight line to the nearest main source of the Chestotee ; thence along its main channel, including Islands to
the Chatahoochie and thence down the same to the Creek boundary at Buzzard roast , thence along the
boundary line which separates this and the Creek Nation , to a point on the Coosa river opposite the mouth of
Wills Creek thence down along the South Bank of the same to a point, opposite Fort Strothers thence up the
river [added: to] the mouth of Wills Creek, thence up along the east Bank of said Creek to the west branch,
thereof and up the same to its source & thence along the ridge which seperates [separates] the Tombigby &
Tennessee waters, to a point on the top of said ridge thence a due north Course to Camp Coffee , on
Tennessee which is opposite the Chickasaw Island , thence to a place of beginning
Section 2. The sovereignity [sovereignty] & jurisdiction of this Government shall extend over the Country
within the boundaries above described, and the lands therein is & shall remain the Common property of the
nation; but the improvements made thereon and in possession of the citizens of the nation, are the exclusive
& indefeasible property of the citizens respectively who made or may rightly be in possession of them
provided that the Citizens of the nation possessing exclusive and indefeasable [indefeasible] rights to their
respective improvements, [unclear] expressed in this article, shall possess no right nor power to dispose of
their improvements in any manner whatever to the United States individual states, nor to individual Citizens
thereof and that whenever any such Citizen or Citizens shall remove with their effects out of the limits of this
nation and become Citizens of any Other government all their rights and privoleges [privileges] as Citizens of
this nation Cease, Provided nevertheless the legislature shall have power to readmit by law, all the rights of
Citizen Ship [Citizenship] to any such person or persons who may at any time desire to return to this nation by
memorializing the General Council for such readmission — Moreover, the Legislature Shall have power to
adopt such laws & regulations as its wisdom may deem expedient and proper to prevent the citizens from
monopolizing improvements with the view of speculation.
Article 2. The powers of this Government shall be divided with three distinct departments, the legislative,
Executive, and Judicial. 2nd. No person or persons belonging to one of these departments shall exercise any of
the powers properly belonging to either of the others; except in cases herein after expressly directed or
permitted.
Article 3. The Legislative power shall be vested in two distinct branches, a Committee and a Council each to
have a negative on the other, and both to be [unclear: stiled ] the General Council of the C herokee nation, and
the styleof their acts and laws shall be Resolved by the Committee and Council in General Council Convened.
Section 2. The Cherokee Nation as laid off into eight Districts, shall remain so.
Section 3. The committee shall consist of two members from each district and the Council shall consist of
three members from each district, to be chosen by the qualified electors of their respective districts for two
years, and the elections to be held in every district on the first monday in august for the year 1828 and every
succeeding two years thereafter. and the Genl [General] Council shall be held once a year to be convened on
the second Monday of October in each year at New, echota no person shall be eligible to a seat in the general
Council but a free cherokee male citizens, who shall have attained to the age of twenty five [twenty-five] years
the descendants of Cherokee men by all free women (except the african race) whose parents may [added: be]
or may have been living together as man and wife according to the Customs & laws of this nation & shall be
entitled to all the rights and privoleges [priveleges] of this Nation, as well as the posterity of cherokee woman
by all free men, no person who is of a negro or mulato [mulatto] parentage either by the father or mother
side, shall be eligible to hold any office of profit or honor or trust under this Government The electors and
members to the G eneral Council shall in all cases except in those of treason, felony, or breach of
the peace be privoledged [privileged] from arrest during their attendance at elections and the General
Council, and in going to or returning from the same. In all elections by the people the electors shall vote Vi —
Va — Voce. Elections for members to the General Council for 1828 shall be held at the place of holding their
several courts & at the other two precincts in each Districts which are designated by the law under which the
members of this convention were elected, and that the district Judges shall superintend the elections within
the precinct of their respective Court Houses; and the marshalls [marshals] & Sheriffs to superintend the
precincts which may be assigned them by the Circuit Judges of their respective District, together with one
other person who shall be appointed by the circuit Judges for each precinct within the District of their
respective Circuits, and the Circuit Judges shall also appoint a clerk to each precinct, The superintendant
[superintendent] & clerks shall on the Wednesday morning preceeding [preceding] the elections assemble at
their respective court Houses and proceed to examine and ascertain the true state of the polls and shall Issue
to each member duly elected a Certificate and also make an official return of the state of the polls of election
to the Principal Chief and it shall be the duty of the Sheriffs to deliver the same to the executive office
provided nevertheless the Genl [General] Council shall have power after the elections of 1828 to regulate by
law the precincts & superintendants [superintendents] & clerks of election in the several Districts.
Section 4. All free male Citizens (excepting negroes & descendants of white & Indian men by Negro women
who may have been set free) who shall have attained to the age of 18 years shall be equally entitled to vote at
all public elections, —
Section 5. Each house of the General Council shall judge of the qualifications, elections & returns of its own
members
Section 6. Each house of the Genl. [General] Council may determine the rules of its proceedings punish a
member for disorderly behaviour [behavior] and with the Concurrence of two thirds expel a member, but not
a second time for the same cause.
Section 7. Each House of the Genl. [General] Council when assembled shall choose its own office rs, a majority
of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day,
and compel the attendance of absent members, in such manner and under such penalties as each House may
prescribe —
Section 8 — The members of the Committee Shall each receive from the public Treasury a compensation for
their services — which Shall be, two dollars and fifty cents per day, during their attendance at the general
Council, and the Members of the Council, Shall each receive, Two dollars per day for their Services during their
attendance at the General Council provided that the same, may be increased or diminished, by law; but no
alteration shall take effect, during the period of service of the Members of the General Council, by whom such
alterations shall have been made —
Section 9. The General Council, shall regulate by law, by whom, and in what manner, Writs of election Shall be
issued, to fill the vacancies which may happen, in either branch thereof
Section 10. Each member of the General Council before he takes his seat, Shall take the following oath or
affirmation, to wit — I A.B. do solemnly swear or affirm, as the case may be, that I have not obtained my
election by bribery, treats or any undue, and unlawful Means, us ed by myself or others, by my desire, or
approbation for that purpose, that I consider myself Constitutionally qualified as a member of [gap] and that
in all questions, and measures which may come, before me, I will give my vote, and So conduct myself, as may
in my judgment appear most conducive to the interest and prosperity of this nation, and that I will bear, true
faith and allegiance to the same and to the utmost of my ability, and power observe, confirm to Support and
defend the Constitution thereof.
Section 11. No person who may be convicted of felony before any Court of this nation, Shall be eligible to any
office or appointment, of honor profit or trust, within this nation —
Section 12. The General Council Shall have power to make, all laws and regulations, which they shall deem
necessary and proper, for the good of the nation, which shall not be contrary to his Constitution —
Section 13. It shall be the duty of the General Council to pass such laws, as may be necessary and proper, to
decide differences, by Arbitrators to be appointed by the parties, who may choose that summary mode of
adjustment —
Section 14 — No power of suspending the laws of this nation Shall be excercised [exercised] unless by the
Legislature or its authority
Section 15. That no retrospective laws nor any law, impairing the obligation of contracts shall be passed —
Section [gap] The Legislature shall have power to make laws for laying & collecting taxes for
the purpose of raising a revenue —
Section [gap] All Bills making appropriations shall originate in the Committee; but the Council may propose
amendments or reject the same —
Section 18. All other Bills, may originate in either House, Subject to the concurrence, or rejection of the other
—
Section 19. All acknowledged Treaties shall be the Supreme law of the land
Section [gap] The General Council shall have the sole power of deciding on the Construction of all treaty
stipulations. the Council Shall have the Sole power of impeaching —
Section [gap] All impeachments shall be tried by the Committee when sitting for that purpose the members
shall be upon oath or affirmation no person shall be Convicted without the Concurrence of two thirds of the
members present
Section [gap] The principal chief assistant principal Chief and all civil officers under this nation shall be liable to
impeachments for any misdemeanor in office, but judgement in such cases, shall not extend for than removal
office, and disqualification to hold any office of honor, trust, or profit, under this nation the party whether
convicted or acquitted, shall nevertheless be liable to indictment trial judgement & punishment according to
law,
Section [gap] The supreme executive power of this nation, shall be vested in a principal chief who shall be
chosen by the Genl. [General] Council and shall hold his office four years to be elected as follows the Genl.
[General] Council by a joint vote shall at their second annual session after the rising of this convention and at
every fourth annual session thereafter on the second day after the two houses shall be organised [organized]
and competent to proceed to business elect a principal Chief.
Section [gap] No person except a natural born citizen shall be eligible to the office of principal Chief neither
shall any person be eligible to that office who Shall have not attained to the age of thirty five [thirty-five]
years.
Section [gap] There shall also be chosen at the same time by General Council in the same manner for four
years an assistant principal Chief in case of the removal of the principal Chief from office or of his death
resignation or inability to discharge the powers and duties of the said office the same shall devolve on the
assistant principal Chief until the inability be removed or vacancy filled by the General Council; The General
Council may by law provided for the case of removal death resignation or inability both of the principal and
assistant principal chiefs declaring what officer shall then act as principal chief until the disability be removed
or a principal chief Shall be elected, the principal chief and assistant principal chief shall at stated times receive
for their services a compensation which shall neither be increased nor diminished during the period for which
they shall have been elected. And they shall not receive within that period any other imolument [emoluments]
from the Cherokee nation or any other person.
Section [gap] Before the principal chief enters on the execution of his office he shall take the following oath or
affirmation: "I do solemnly swear or (affirm) that I will faithfully execute the office of Principal Chief of the
Cherokee Nation and will to the best of my ability preserve, protect & defend the constitution of the Cherokee
Nation."
Section [gap] He may on extraordinary occassions [occasions] convene the Genl. [General] Council at the seat
of government. He shall from time to time give to the general Council information of the state of the
Government and recommend to their consideration such measures as he may think expedient. He shall take
care that the laws be faithfully executed. It shall be his duty to visit the different Districts at least once in two
years to inform himself of the general Condition of the Country
Section [gap] The assistant principal chief shall by virtue of his office aid & advise the principal chief in the
administration of the Government at all times during his continuance in office.
Section [gap] Vacancies that may happen in offices the appointment of which is vested in the general council,
shall be filled by the principal Chief during the recess of the General Council by granting commission which
shall expire at the end next session.
Section [gap] Every bill which shall have passed both houses of the General council shall before it becomes a
law be presented to the principal Chief of the Cherokee Nation if he approves it he shall sign it but if not he
shall return it with his objections to that house in which it shall have Originated who shall enter the objections
at large on their journals and proceed to reconsider it if after such reconsideration two thirds of that house
shall agree to pass the Bill it shall be sent together with the objection to the other House by which it shall
likewise be reconsidered and if approved of by two thirds of that house it shall become a law. If any Bill shall
not be returned by the principal Chief within five days (sundays excepted) after it sha ll have been present to
him the same shall be a law in like manner as if he had signed it unless the General Council by their
adjournments prevents its return in which case it shall be a law unless sent back within three days after their
next meeting
Section [gap] Members of the general Council and all officers Executive & Judicial shall be bound by oath to
support the Constitution of this Nation and to perform the duties of their respective offices with fidelity
Section [gap] In case of disagreement between the two Houses with respect to the time of adjournment the
principal chief shall have power to adjourn the Genl. [General] Council to such a time as he thinks proper
Provided it be not to a period beyond the next constitutional meeting of the same
Section [gap] The Principal Chief shall during the sitting of the Genl. [General] Council attend at the seat of
government
Section [gap] There shall be a council to consist of three men to be appointed by the joint vote of both Houses
to advise the principal Chief in the executive part of the Government whom the principal chief shall have full
power at his discretion and to assemble and he together with the assistant principal Chief and Counsellors
[Counselors] or a majority of them may from time to time hold and keep a council for ordering and directing
the affairs of the nation according to law
Section [gap] The members of the Council shall be chosen annually
Section [gap] The Resolution and advice of the Council shall be recorded in a Register and signed by the
members agreeing thereto, which may be called for, by either House of the General Council, and any Councilor
may enter his dissent, to the Resolution of the majority —
Section [gap] The Treasurer of the Cherokee Nation shall be chosen by the joint vote of each House of the
General Council for the term of two years —
Section [gap] The Treasurer shall before entering on the duties of his office give bond to the nation with
Securities to the satisfaction of the Legislature, — for the faithful discharge of his trust
Section [gap] No money shall be drawn from the Treasury but by Warrant from the principal Chief, and in
consequence of appropriation made by law
Section [gap] It shall be the duty of the Treasurer to receive all public monies. and to make a regular
Statement and account of the receipts and expenditure of all public monies to the annual Session of the
General Council
Article 1st.
The Judicial powers shall be vested in a Supreme Court, and such Circuit and inferior Courts as the General
Council may from time to time ordain and establish.
Article 2nd.
The Supreme Court, shall consist of three Judges, any two of whom, shall be a quorum —
Art. [Article] 3 — The Judges of each Shall hold their commissions four years, but any of them may be
removed, from Office, on the address of two thirds of each House of the General Council, to the principal
Chief, for that purpose —
Art [Article] 4 — The Judges of the Supreme and Circuit Courts, Shall at stated times receive a compensation
which shall not be diminished during their Continuance in Office but they, Shall receive no fees or perquisites
of Office — nor hold any other Office, of profit or trust, under this nation or any other power —
Art [Article] 5 — No person shall be appointed a Judge of any of the Courts, before he shall have attained
to the age of thirty years, nor shall any person continue to excercise [exercise] the duties of any of the said
offices after he Shall have attained, to the age of seventy years —
Art [Article] 6. The Judges of the Supreme and Circuit Courts, shall be appointed by joint vote of each House,
of the General Council —
Art [Article] 7 — There shall be appointed in each district Render the Legislative authority as many Justices of
the peace as may be deemed the public good require — and whose powers, duties and duration in office shall
be clearly designated
Art [Article] 8 — The Judges of the Supreme Court, and Circuit Courts shall have complete criminal Jurisdiction
in such cases, and in such manner, as may be pointed out, by law —
Art [Article] 9 — Each Court shall Choose its own clerks for the term of four years, but such clerks shall not be
continued in office unless their qualifications, shall be adjudged and approved of by the Judges — of the
Supreme Court, and they shall be removable for breach of good behaviour [behavior], at any time by the
Judges of the respective Courts.
Art [Article] 10 — No Judge Shall sit on the trial of any cause, where the parties shall be connected with him by
affinity, or consanguinity, except by consent of the parties — In cases all the Judges of the Supreme Court,
Shall be intrusted in the event, if any cause, or related to all or either of the parties, the legislature may
provide by law for the Selection of three men of good Character, and knowledg e for the determination of
thereof who shall be specially commissioned by the principal Chief for the case.
Art [Article] 11 — All writs and other process shall run in the name of the Cherokee nation, and bear test
[testimony], and be signed by the respective Clerks
Art [Article] 12 — Indictments shall conclude against the peace and dignity of the Cherokee nation —
Art [Article] 13 — The Supreme Court shall hold its Session Annually at the seat of Government to be
convened on the second Monday of October in each year
Art [Article] 14 — In all continual prosecutions the accused Shall have the right of being heard of demanding
the nature and cause, of the accusation against him, of meeting the witness face to face of having compulsory
process for obtaining witnesses in his favor — and in prosecutions by indictments or information, a speedy
public trial by an impartial Jury of the vicinage nor shall he be compelled to give evidence against himself —
Art [Article] 15 — That the people shall be secure in their persons houses papers and possessions from
unreasonable seizures and searches & that no warrant to search any place or to seize any person or things
shall issue without describing them as nearly as may be, nor without good excuse, supported by Oath or
affirmation — all prisoners shall be bailable, by Sufficient securities [added: unless] for capital offences, where
the proof is evident or presumption great —
Art [Article] 16 — Whereas the Ministers of the Gospel are by their profession dedicated to the s ervice of God
"and Care of souls" and ought not to be divested from the great duty of their functions — Therefore no
minister of the Gospel, or public preacher of any Religious persuasion, whilst he continues the excercise
[exercise] of his pastoral functions, shall be eligible to the Office of Principal Chief or a seat in either House of
the general Council —
Art [Article] 17 — No persons who denies the being of God, of future state of rewards and punishments, shall
hold any office in the Civil departments of this nation —
Art [Article] 18 — The free excercise [exercise] of religious worship and serving God without destruction, Shall
forever be allowed within this nation, provided that this liberty of conscience, Shall not be so construed, as to
excuse acts of licentiousness, or Justify practices inconsistent with the peace of safety of this nation —
Art [Article] 19 — Whenever the General Council Shall determine, the expediency of appointing Delegators, or
other public agents, for the purpose of transacting business with the government of the United States, the
principal Chief shall have powers, to recommend, and by the advice and consent of the committee shall
appoint and commission such delegates or public agents accordingly, and on all matters ofintere st touching
the rights of the Citizens of this nation, which may require attention of the United States Government, The
principal Chief Shall keep a friendly correspondence with government through the medium of the proper
officers —
Art [Article] 20 — All commissions shall be the name and by the Authority of the Cherokee nation and be
sealed with the Seal of the Nation and be signed by the principal Chief — The principal Chief shall make use of
his private Seal until a national seal shall be provided —
Art [Article] 21. A Sheriff shall be elected in each district by the qualified electors thereof who shall hold his
office for the term of two years unless sooner removed. — Should a vacancy Occur Subsequent to an election,
it shall be filled, by the principal Chief, as in other cases and the person so appointed, Shall continue in Office,
until the next General election when such vacancies, shall be filled, by the qualified electors, and the sheriff
then elected shall continue in for two years —
Art [Article] 22. There shall be a Marshall appointed by a joint vote of both Houses of the General Council for
the term of four years, whose compensation and duty shall be regulated by law, and whose jurisdiction shall
extend, over the Cherokee Nation —
Art [Article] 23. No person shall for the same offence be twice put in jeopardy of life or liberty nor shall any
persons property be taken or applied to public use, without his consent provided that nothing shall be so
construed in this clause as to impair the right and power of the General Council to lay and collect taxes — That
all Courts, shall be open and every person for an injury done him in his property, person, or reputation, shall
have remedy by due course of law
Art [Article] 24 — The right of trial by Jury shall remain inviolate.
Religion, Morality, and knowledge being necessary to good government and the preservation of liberty, and
the happiness of Mankind Schools and the means of education, shall forever, be encouraged in this nation
The appointment of all officers not otherwise directed by this constitution, shall be vested in the legislature
All Laws in force in this nation at the passing of this constitution shall so continue until altered or repealed by
the Legislature except when they are temporary in which case they shall expire at the times respectively
limitted [limited] for their duration if not continued by acts of the Legislature.
The General Council may at any time propose such amendments to this Constitution as two thirds of each
House shall deem expedient and the Principal Chief shall issue a proclamation directing all the Civil officers of
the several Districts to promulgate the same as extensively as possible within their respective Districts at least
nine Months previous to the next general election and if at the first session of the General Council after such
general election two thirds of each House shall by yeas and nays ratify such proposed amendments they shall
be valid to all intents and purposes as parts of this Constitution provided that such proposed amendments
shall be read on three several days in each house as will when the same are proposed as when they are finally
ratified
Done in Convention at New Town
Echota this 24th day of July 1827.
Title: The Indian Removal Act of 1830
Author: U.S. Government
Year Published: 1830
(excerpt from Indian Removal Act)
The Indian Removal Act of 1830
CHAP. CXLVIII.--An Act to provide for an exchange of lands with the Indians residing in any of the states or
territories, and for their removal west of the river Mississippi.
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress
assembled, That it shall and may be lawful for the President of the United States to cause so much of any
territory belonging to the United States, west of the river Mississippi, not included in any state or organized
territory, and to which the Indian title has been extinguished, as he may judge necessary, to be divided into a
suitable number of districts, for the reception of such tribes or nations of Indians as may choose to exchange
the lands where they now reside, and remove there; and to cause each of said districts to be so described by
natural or artificial marks, as to be easily distinguished from every other.
SEC. 2. And be it further enacted, That it shall and may be lawful for the President to exchange any or all of
such districts, so to be laid off and described, with any tribe or nation within the limits of any of the states or
territories, and with which the United States have existing treaties, for the whole or any part or portion of the
territory claimed and occupied by such tribe or nation, within the bounds of any one or more of the states or
territories, where the land claimed and occupied by the Indians, is owned by the United States, or the United
States are bound to the state within which it lies to extinguish the Indian claim thereto.
SEC. 3. And be it further enacted, That in the making of any such exchange or exchanges, it shall and may be
lawful for the President solemnly to assure the tribe or nation with which the exchange is made, that the
United States will forever secure and guaranty to them, and their heirs or successors, the country so
exchanged with them; and if they prefer it, that the United States will cause a patent or grant to be made and
executed to them for the same: Provided always, That such lands shall revert to the United States, if the
Indians become extinct, or abandon the same.
SEC. 4. And be it further enacted, That if, upon any of the lands now occupied by the Indians, and to be
exchanged for, there should be such improvements as add value to the land claimed by any individual or
individuals of such tribes or nations, it shall and may be lawful for the President to cause such value to be
ascertained by appraisement or otherwise, and to cause such ascertained value to be paid to the person or
persons rightfully claiming such improvements. And upon the payment of such valuation, the improvements
so valued and paid for, shall pass to the United States, and possession shall not afterwards be permitted to
any of the same tribe.
SEC. 5. And be it further enacted, That upon the making of any such exchange as is contemplated by this act, it
shall and may be lawful for the President to cause such aid and assistance to be furnished to the emigrants as
may be necessary and proper to enable them to remove to, and settle in, the country for which they may have
exchanged; and also, to give them such aid and assistance as may be necessary for their support and
subsistence for the first year after their removal.
SEC. 6. And be it further enacted, That it shall and may be lawful for the President to cause such tribe or nation
to be protected, at their new residence, against all interruption or disturbance from any other tribe or nation
of Indians, or from any other person or persons whatever.
SEC. 7. And be it further enacted, That it shall and may be lawful for the President to have the same
superintendence and care over any tribe or nation in the country to which they may remove, as contemplated
by this act, that he is now authorized to have over them at their present places of residence.
Treaty of New Echota
(U.S. Treaty with unofficial Cherokee delegation)
INDIAN AFFAIRS: LAWS AND TREATIES
Vol. II, Treaties
Compiled and edited by Charles J. Kappler. Washington : Government Printing Office,
1904.
TREATY WITH THE CHEROKEE, 1835.
Dec. 29, 1835. | 7 Stat., 478. | Proclamation, May 23, 1836.
Articles of a treaty, concluded at New Echota in the State of Georgia on the 29th day of
Decr. 1835 by General William Carroll and John F. Schermerhorn commissioners on the
part of the United States and the Chiefs Head Men and People of the Cherokee tribe of
Indians.
WHEREAS the Cherokees are anxious to make some arrangements with the
Government of the United States whereby the difficulties they have experienced by a
residence within the settled parts of the United States under the jurisdiction and laws of
the State Governments may be terminated and adjusted; and with a view to reuniting
their people in one body and securing a permanent home for themselves and their
posterity in the country selected by their forefathers without the territorial limits of the
State sovereignties, and where they can establish and enjoy a government of their choice
and perpetuate such a state of society as may be most consonant with their views, habits
and condition; and as may tend to their individual comfort and their advancement in
civilization.
And whereas a delegation of the Cherokee nation composed of Messrs. John Ross
Richard Taylor Danl. McCoy Samuel Gunter and William Rogers with full power and
authority to conclude a treaty with the United States did on the 28th day of February 1835
stipulate and agree with the Government of the United States to submit to the Senate to
fix the amount which should be allowed the Cherokees for their claims and for a cession
of their lands east of the Mississippi river, and did agree to abide by the award of the
Senate of the United States themselves and to recommend the same to their people for
their final determination.
And whereas on such submission the Senate advised “that a sum not exceeding five
millions of dollars be paid to the Cherokee Indians for all their lands and possessions east
of the Mississippi river.”
And whereas this delegation after said award of the Senate had been made, were called
upon to submit propositions as to its disposition to be arranged in a treaty which they
refused to do, but insisted that the same “should be referred to their nation and there in
general council to deliberate and determine on the subject in order to ensure harmony
and good feeling among themselves.”
And whereas a certain other delegation composed of John Ridge Elias Boudinot Archilla
Smith S. W. Bell John West Wm. A. Davis and Ezekiel West, who represented that
portion of the nation in favor of emigration to the Cherokee country west of the Mississippi
entered into propositions for a treaty with John F. Schermerhorn commissioner on the
part of the United States which were to be submitted to their nation for their final action
and determination:
And whereas the Cherokee people at their last October council at Red Clay, fully
authorized and empowered a delegation or committee of twenty persons of their nation to
enter into and conclude a treaty with the United States commissioner then present, at that
place or elsewhere and as the people had good reason to believe that a treaty would
Page 440
then and there be made or at a subsequent council at New Echota which the
commissioners it was well known and understood, were authorized and instructed to
convene for said purpose; and since the said delegation have gone on to Washington
city, with a view to close negotiations there, as stated by them notwithstanding they were
officially informed by the United States commissioner that they would not be received by
the President of the United States; and that the Government would transact no business
of this nature with them, and that if a treaty was made it must be done here in the nation,
where the delegation at Washington last winter urged that it should be done for the
purpose of promoting peace and harmony among the people; and since these facts have
also been corroborated to us by a communication recently received by the commissioner
from the Government of the United States and read and explained to the people in open
council and therefore believing said delegation can effect nothing and since our
difficulties are daily increasing and our situation is rendered more and more precarious
uncertain and insecure in consequence of the legislation of the States; and seeing no
effectual way of relief, but in accepting the liberal overtures of the United States.
And whereas Genl William Carroll and John F. Schermerhorn were appointed
commissioners on the part of the United States, with full power and authority to conclude
a treaty with the Cherokees east and were directed by the President to convene the
people of the nation in general council at New Echota and to submit said propositions to
them with power and authority to vary the same so as to meet the views of the Cherokees
in reference to its details.
And whereas the said commissioners did appoint and notify a general council of the
nation to convene at New Echota on the 21st day of December 1835; and informed them
that the commissioners would be prepared to make a treaty with the Cherokee people
who should assemble there and those who did not come they should conclude gave their
assent and sanction to whatever should be transacted at this council and the people
having met in council according to said notice.
Therefore the following articles of a treaty are agreed upon and concluded between
William Carroll and John F. Schermerhorn commissioners on the part of the United
States and the chiefs and head men and people of the Cherokee nation in general
council assembled this 29th day of Decr 1835.
ARTICLE 1.
The Cherokee nation hereby cede relinquish and convey to the United States all the
lands owned claimed or possessed by them east of the Mississippi river, and hereby
release all their claims upon the United States for spoliations of every kind for and in
consideration of the sum of five millions of dollars to be expended paid and invested in
the manner stipulated and agreed upon in the following articles But as a question has
arisen between the commissioners and the Cherokees whether the Senate in their
resolution by which they advised “that a sum not exceeding five millions of dollars be paid
to the Cherokee Indians for all their lands and possessions east of the Mississippi river”
have included and made any allowance or consideration for claims for spoliations it is
therefore agreed on the part of the United States that this question shall be again
submitted to the Senate for their consideration and decision and if no allowance was
made for spoliations that then an additional sum of three hundred thousand dollars be
allowed for the same.
ARTICLE 2.
Whereas by the treaty of May 6th 1828 and the supplementary treaty thereto of Feb. 14th
1833 with the Cherokees west of the Mississippi the United States guarantied and
secured to be conveyed by patent, to the Cherokee nation of Indians the following tract of
country “Beginning at a point on the old western territorial line of Arkansas Territory being
twenty-five miles north from the point where
Page 441
the territorial line crosses Arkansas river, thence running from said north point south on
the said territorial line where the said territorial line crosses Verdigris river; thence down
said Verdigris river to the Arkansas river; thence down said Arkansas to a point where a
stone is placed opposite the east or lower bank of Grand river at its junction with the
Arkansas; thence running south forty-four degrees west one mile; thence in a straight line
to a point four miles northerly, from the mouth of the north fork of the Canadian; thence
along the said four mile line to the Canadian; thence down the Canadian to the Arkansas;
thence down the Arkansas to that point on the Arkansas where the eastern Choctaw
boundary strikes said river and running thence with the western line of Arkansas Territory
as now defined, to the southwest corner of Missouri; thence along the western Missouri
line to the land assigned the Senecas; thence on the south line of the Senecas to Grand
river; thence up said Grand river as far as the south line of the Osage reservation,
extended if necessary; thence up and between said south Osage line extended west if
necessary, and a line drawn due west from the point of beginning to a certain distance
west, at which a line running north and south from said Osage line to said due west line
will make seven millions of acres within the whole described boundaries. In addition to
the seven millions of acres of land thus provided for and bounded, the United States
further guaranty to the Cherokee nation a perpetual outlet west, and a free and
unmolested use of all the country west of the western boundary of said seven millions of
acres, as far west as the sovereignty of the United States and their right of soil extend:
Provided however That if the saline or salt plain on the western prairie shall fall within
said limits prescribed for said outlet, the right is reserved to the United States to permit
other tribes of red men to get salt on said plain in common with the Cherokees; And
letters patent shall be issued by the United States as soon as practicable for the land
hereby guarantied.”
And whereas it is apprehended by the Cherokees that in the above cession there is not
contained a sufficient quantity of land for the accommodation of the whole nation on their
removal west of the Mississippi the United States in consideration of the sum of five
hundred thousand dollars therefore hereby covenant and agree to convey to the said
Indians, and their descendants by patent, in fee simple the following additional tract of
land situated between the west line of the State of Missouri and the Osage reservation
beginning at the southeast corner of the same and runs north along the east line of the
Osage lands fifty miles to the northeast corner thereof; and thence east to the west line of
the State of Missouri; thence with said line south fifty miles; thence west to the place of
beginning; estimated to contain eight hundred thousand acres of land; but it is expressly
understood that if any of the lands assigned the Quapaws shall fall within the aforesaid
bounds the same shall be reserved and excepted out of the lands above granted and a
pro rata reduction shall be made in the price to be allowed to the United States for the
same by the Cherokees.
ARTICLE 3.
The United States also agree that the lands above ceded by the treaty of Feb. 14 1833,
including the outlet, and those ceded by this treaty shall all be included in one patent
executed to the Cherokee nation of Indians by the President of the United States
according to the provisions of the act of May 28 1830. It is, however, agreed that the
military reservation at Fort Gibson shall be held by the United States. But should the
United States abandon said post and have no further use for the same it shall revert to
the Cherokee nation. The United States shall always have the right to make and establish
such post and military roads and forts in any part of the Cherokee country, as they may
deem proper for the interest and protection of the same
Page 442
and the free use of as much land, timber, fuel and materials of all kinds for the
construction and support of the same as may be necessary; provided that if the private
rights of individuals are interfered with, a just compensation therefor shall be made.
ARTICLE 4.
The United States also stipulate and agree to extinguish for the benefit of the Cherokees
the titles to the reservations within their country made in the Osage treaty of 1825 to
certain half-breeds and for this purpose they hereby agree to pay to the persons to whom
the same belong or have been assigned or to their agents or guardians whenever they
shall execute after the ratification of this treaty a satisfactory conveyance for the same, to
the United States, the sum of fifteen thousand dollars according to a schedule
accompanying this treaty of the relative value of the several reservations.
And whereas by the several treaties between the United States and the Osage Indians
the Union and Harmony Missionary reservations which were established for their benefit
are now situated within the country ceded by them to the United States; the former being
situated in the Cherokee country and the latter in the State of Missouri. It is therefore
agreed that the United States shall pay the American Board of Commissioners for
Foreign Missions for the improvements on the same what they shall be appraised at by
Capt. Geo. Vashon Cherokee sub-agent Abraham Redfield and A. P. Chouteau or such
persons as the President of the United States shall appoint and the money allowed for
the same shall be expended in schools among the Osages and improving their condition.
It is understood that the United States are to pay the amount allowed for the reservations
in this article and not the Cherokees.
ARTICLE 5.
The United States hereby covenant and agree that the lands ceded to the Cherokee
nation in the forgoing article shall, in no future time without their consent, be included
within the territorial limits or jurisdiction of any State or Territory. But they shall secure to
the Cherokee nation the right by their national councils to make and carry into effect all
such laws as they may deem necessary for the government and protection of the persons
and property within their own country belonging to their people or such persons as have
connected themselves with them: provided always that they shall not be inconsistent with
the constitution of the United States and such acts of Congress as have been or may be
passed regulating trade and intercourse with the Indians; and also, that they stall not be
considered as extending to such citizens and army of the United States as may travel or
reside in the Indian country by permission according to the laws and regulations
established by the Government of the same.
ARTICLE 6.
Perpetual peace and friendship shall exist between the citizens of the United States and
the Cherokee Indians. The United States agree to protect the Cherokee nation from
domestic strife and foreign enemies and against intestine wars between the several
tribes. The Cherokees shall endeavor to preserve and maintain the peace of the country
and not make war upon their neighbors they shall also be protected against interruption
and intrusion from citizens of the United States, who may attempt to settle in the country
without their consent; and all such persons shall be removed from the same by order of
the President of the United States. But this is not intended to prevent the residence
among them of useful farmers mechanics and teachers for the instruction of Indians
according to treaty stipulations.
ARTICLE 7.
The Cherokee nation having already made great progress in civilization and deeming it
important that every proper and laudable inducement should be offered to their people to
improve their condition as well as to guard and secure in the most effectual manner the
rights guarantied to them in this treaty, and with a view to illustrate the liberal and
enlarged policy of the Government of the United States towards
Page 443
the Indians in their removal beyond the territorial limits of the States, it is stipulated that
they shall be entitled to a delegate in the House of Representatives of the United States
whenever Congress shall make provision for the same.
ARTICLE 8.
The United States also agree and stipulate to remove the Cherokees to their new homes
and to subsist them one year after their arrival there and that a sufficient number of
steamboats and baggage-wagons shall be furnished to remove them comfortably, and so
as not to endanger their health, and that a physician well supplied with medicines shall
accompany each detachment of emigrants removed by the Government. Such persons
and families as in the opinion of the emigrating agent are capable of subsisting and
removing themselves shall be permitted to do so; and they shall be allowed in full for all
claims for the same twenty dollars for each member of their family; and in lieu of their one
year's rations they shall be paid the sum of thirty-three dollars and thirty-three cents if
they prefer it.
Such Cherokees also as reside at present out of the nation and shall remove with them in
two years west of the Mississippi shall be entitled to allowance for removal and
subsistence as above provided.
ARTICLE 9.
The United States agree to appoint suitable agents who shall make a just and fair
valuation of all such improvements now in the possession of the Cherokees as add any
value to the lands; and also of the ferries owned by them, according to their net income;
and such improvements and ferries from which they have been dispossessed in a lawless
manner or under any existing laws of the State where the same may be situated.
The just debts of the Indians shall be paid out of any monies due them for their
improvements and claims; and they shall also be furnished at the discretion of the
President of the United States with a sufficient sum to enable them to obtain the
necessary means to remove themselves to their new homes, and the balance of their
dues shall be paid them at the Cherokee agency west of the Mississippi. The missionary
establishments shall also be valued and appraised in a like manner and the amount of
them paid over by the United States to the treasurers of the respective missionary
societies by whom they have been established and improved in order to enable them to
erect such buildings and make such improvements among the Cherokees wes t of the
Mississippi as they may deem necessary for their benefit. Such teachers at present
among the Cherokees as this council shall select and designate shall be removed west of
the Mississippi with the Cherokee nation and on the same terms allowed to them.
ARTICLE 10.
The President of the United States shall invest in some safe and most productive public
stocks of the country for the benefit of the whole Cherokee nation who have removed or
shall remove to the lands assigned by this treaty to the Cherokee nation west of the
Mississippi the following sums as a permanent fund for the purposes hereinafter specified
and pay over the net income of the same annually to such person or persons as shall be
authorized or appointed by the Cherokee nation to receive the same and their receipt
shall be a full discharge for the amount paid to them viz: the sum of two hundred
thousand dollars in addition to the present annuities of the nation to constitute a general
fund the interest of which shall be applied annually by the council of the nation to such
purposes as they may deem best for the general interest of their people. The sum of fifty
thousand dollars to constitute an orphans' fund the annual income of which shall be
expended towards the support and education of s uch orphan children as are destitute of
the means of subsistence. The sum of one hundred and fifty thousand dollars in addition
to the present school fund of the nation shall constitute a permanent school fund, the
interest of which shall be applied annually by the council of the nation for the support of
Page 444
common schools and such a literary institution of a higher order as may be established in
the Indian country. And in order to secure as far as possible the true and beneficial
application of the orphans' and school fund the council of the Cherokee nation w hen
required by the President of the United States shall make a report of the application of
those funds and he shall at all times have the right if the funds have been misapplied to
correct any abuses of them and direct the manner of their application for the purposes for
which they were intended. The council of the nation may by giving two years' notice of
their intention withdraw their funds by and with the consent of the President and Senate
of the United States, and invest them in such manner as they may deem most proper for
their interest. The United States also agree and stipulate to pay the just debts and claims
against the Cherokee nation held by the citizens of the same and also the just claims of
citizens of the United States for services rendered to the nation and the sum of sixty
thousand dollars is appropriated for this purpose but no claims against individual persons
of the nation shall be allowed and paid by the nation. The sum of three hundred thousand
dollars is hereby set apart to pay and liquidate the just claims of the Cherokees upon the
United States for spoliations of every kind, that have not been already satisfied under
former treaties.
ARTICLE 11.
The Cherokee nation of Indians believing it will be for the interest of their people to have
all their funds and annuities under their own direction and future disposition hereby agree
to commute their permanent annuity of ten thousand dollars for the sum of two hundred
and fourteen thousand dollars, the same to be invested by the President of the United
States as a part of the general fund of the nation; and their present school fund
amounting to about fifty thousand dollars shall constitute a part of the permanent school
fund of the nation.
ARTICLE 12.
Those individuals and families of the Cherokee nation that are averse to a removal to the
Cherokee country west of the Mississippi and are desirous to become citizens of the
States where they reside and such as are qualified to take care of themselves and their
property shall be entitled to receive their due portion of all the personal benefits accruing
under this treaty for their claims, improvements and per capita; as soon as an
appropriation is made for this treaty.
Such heads of Cherokee families as are desirous to reside within the States of No.
Carolina, Tennessee, and Alabama subject to the laws of the same; and who are
qualified or calculated to become useful citizens shall be entitled, on the certificate of the
commissioners to a preemption right to one hundred and sixty acres of land or one
quarter section at the minimum Congress price; so as to include the present buildings or
improvements of those who now reside there and such as do not live there at present
shall be permitted to locate within two years any lands not already occupied by persons
entitled to pre-emption privilege under this treaty and if two or more families live on the
same quarter section and they desire to continue their residence in these States and are
qualified as above specified they shall, on receiving their pre-emption certificate be
entitled to the right of pre-emption to such lands as they may select not already taken by
any person entitled to them under this treaty.
It is stipulated and agreed between the United States and the Cherokee people that John
Ross, James Starr, George Hicks, John Gunter, George Chambers, John Ridge, Elias
Boudinot, George Sanders, John Martin , William Rogers, Roman Nose Situwake, and
John Timpson shall be a committee on the part of the Cherokees to recommend such
persons for the privilege of pre-emption rights as may be deemed entitled to the same
under the above articles and to select the missionaries who shall be removed with the
nation; and that they be hereby
Page 445
fully empowered and authorized to transact all business on the part of the Indians which
may arise in carrying into effect the provisions of this treaty and settling the same with the
United States. If any of the persons above mentioned should decline acting or be
removed by death; the vacancies shall be filled by the committee themselves.
It is also understood and agreed that the sum of one hundred thousand dollars shall be
expended by the commissioners in such manner as the committee deem best for the
benefit of the poorer class of Cherokees as shall remove west or have removed west and
are entitled to the benefits of this treaty. The same to be delivered at the Cherokee
agency west as soon after the removal of the nation as possible.
ARTICLE 13.
In order to make a final settlement of all the claims of the Cherokees for reservations
granted under former treaties to any individuals belonging to the nation by the United
States it is therefore hereby stipulated and agreed and expressly understood by the
parties to this treaty—that all the Cherokees and their heirs and descendants to whom
any reservations have been made under any former treaties with the United States, and
who have not sold or conveyed the same by deed or otherwise and who in the opinion of
the commissioners have complied with the terms on which the reservations were granted
as far as practicable in the several cases; and which reservations have since been sold
by the United States shall constitute a just claim against the United States and the
original reservee or their heirs or descendants shall be entitled to receive the present
value thereof from the United States as unimproved lands. And all such reservations as
have not been sold by the United States and where the terms on which the reservations
were made in the opinion of the commissioners have been complied with as far as
practicable, they or their heirs or descendants shall be entitled to the same. They are
hereby granted and confirmed to them—and also all persons who were entitled to
reservations under the treaty of 1817 and who as far as practicable in the opinion of the
commissioners, have complied with the stipulations of said treaty, although by the treaty
of 1819 such reservations were included in the unceded lands belonging to the Cherokee
nation are hereby confirmed to them and they shall be entitled to receive a grant for the
same. And all such reservees as were obliged by the laws of the States in which their
reservations were situated, to abandon the same or purchase them from the States shall
be deemed to have a just claim against the United States for the amount by them paid to
the States with interest thereon for such reservations and if obliged to abandon the same,
to the present value of such reservations as unimproved lands but in all cases where the
reservees have sold their reservations or any part thereof and conveyed the same by
deed or otherwise and have been paid for the same, they their heirs or descendants or
their assigns shall not be considered as having any claims upon the United States under
this article of the treaty nor be entitled to receive any compensation for the lands thus
disposed of. It is expressly understood by the parties to this treaty that the amount to be
allowed for reservations under this article shall not be deducted out of the consideration
money allowed to the Cherokees for their claims for spoilations and the cession of their
lands; but the same is to be paid for independently by the United States as it is only a just
fulfillment of former treaty stipulations.
ARTICLE 14.
It is also agreed on the part of the United States that such warriors of the Cherokee
nation as were engaged on the side of the United States in the late war with Great Britain
and the southern tribes of Indians, and who were wounded in such service shall be
entitled to such pensions as shall be allowed them by the Congress of the United States
to commence from the period of their disability.
Page 446
ARTICLE 15.
It is expressly understood and agreed between the parties to this treaty that after
deducting the amount which shall be actually expended for the payment for
improvements, ferries, claims, for spoliations, removal subsistence and debts and claims
upon the Cherokee nation and for the additional quantity of lands and goods for the
poorer class of Cherokees and the several sums to be invested for the general national
funds; provided for in the several articles of this treaty the balance whatever the same
may be shall be equally divided between all the people belonging to the Cherokee nation
east according to the census just completed; and such Cherokees as have removed west
since June 1833 who are entitled by the terms of their enrollment and removal to all the
benefits resulting from the final treaty between the United States and the Cherokees east
they shall also be paid for their improvements according to their approved value before
their removal where fraud has not already been shown in their valuation.
ARTICLE 16.
It is hereby stipulated and agreed by the Cherokees that they shall remove to their new
homes within two years from the ratification of this treaty and that during such time the
United States shall protect and defend them in their possessions and property and free
use and occupation of the same and such persons as have been dispossessed of their
improvements and houses; and for which no grant has actually issued previously to the
enactment of the law of the State of Georgia, of December 1835 to reg ulate Indian
occupancy shall be again put in possession and placed in the same situation and
condition, in reference to the laws of the State of Georgia, as the Indians that have not
been dispossessed; and if this is not done, and the people are left unprotected, then the
United States shall pay the several Cherokees for their losses and damages sustained by
them in consequence thereof. And it is also stipulated and agreed that the public
buildings and improvements on which they are situated at New Echota for which no grant
has been actually made previous to the passage of the above recited act if not occupied
by the Cherokee people shall be reserved for the public and free use of the United States
and the Cherokee Indians for the purpose of settling and closing all the Indian business
arising under this treaty between the commissioners of claims and the Indians.
The United States, and the several States interested in the Cherokee lands, shall
immediately proceed to survey the lands ceded by this treaty; but it is expressly agreed
and understood between the parties that the agency buildings and that tract of land
surveyed and laid off for the use of Colonel R. J. Meigs Indian agent or heretofore
enjoyed and occupied by his successors in office shall continue subject to the use and
occupancy of the United States, or such agent as may be engaged specially
superintending the removal of the tribe.
ARTICLE 17.
All the claims arising under or provided for in the several articles of this treaty, shall be
examined and adjudicated by such commissioners as shall be appointed by the President
of the United States by and with the advice and consent of the Senate of the United
States for that purpose and their decision shall be final and on their certificate of the
amount due the several claimants they shall be paid by the United States. All stipulations
in former treaties which have not been superseded or annulled by this shall continue in
full force and virtue.
ARTICLE 18.
Whereas in consequence of the unsettled affairs of the Cherokee people and the early
frosts, their crops are insufficient to support their families and great distress is likely to
ensue and whereas the nation will not, until after their removal be able advantageously to
expend the income of the permanent funds of the nation it is therefore agreed that the
annuities of the nation which may accrue under this
Page 447
treaty for two years, the time fixed for their removal shall be expended in provision and
clothing for the benefit of the poorer class of the nation and the United States hereby
agree to advance the same for that purpose as soon after the ratification of t his treaty as
an appropriation for the same shall be made. It is however not intended in this article to
interfere with that part of the annuities due the Cherokees west by the treaty of 1819.
ARTICLE 19.
This treaty after the same shall be ratified by the President and Senate of the United
States shall be obligatory on the contracting parties.
ARTICLE 20.
[Supplemental article. Stricken out by Senate.]
In testimony whereof, the commissioners and the chiefs, head men, and people whose
names are hereunto annexed, being duly authorized by the people in general council
assembled, have affixed their hands and seals for themselves, and in behalf of the
Cherokee nation.
I have examined the foregoing treaty, and although not present when it was made, I
approve its provisions generally, and therefore sign it.
Wm. Carroll,
J. F. Schermerhorn.
Major Ridge, his x mark , [L. S.]
James Foster, his x mark , [L. S.]
Tesa-ta-esk y, his x mark , [L. S.]
Charles Moore, his x mark , [L. S.]
George Chambers, his x mark , [L. S.]
Tah-yesk e, his x mark , [L. S.]
Archilla Smith, his x mark , [L. S.]
Andrew Ross, [L. S.]
William Lassley, [L. S.]
Cae-te-hee, his x mark , [L. S.]
Te-gah-e-sk e, his x mark, [L. S.]Robert Rogers, [L. S.]
John Gunter, [L. S.]
John A. Bell, [L. S.]
Charles F. Foreman, [L. S.]
William Rogers, [L. S.]
George W. Adair, [L. S.]
Elias Boudinot, [L. S.]
James Starr, his x mark , [L. S.]
Jesse Half-breed, his x mark , [L. S.]
Signed and sealed in presence of—
Western B. Thomas, secretary.
Ben. F. Currey, special agent.
M. Wolfe Batman, first lieutenant, sixth U. S. infantry, disbursing agent.
Jon. L. Hooper, lieutenant, fourth Infantry.
C. M Hitchcock , M. D., assistant surgeon, U.S.A.
G. W. Currey,
Wm. H. Underwood,
Cornelius D. Terhune,
John W. H. Underwood.
In compliance with instructions of the council at New Echota, we sign this treaty.
Stand Watie,
John Ridge.
March 1, 1836.
Witnesses:
Elbert Herring,
Alexander H. Everett,
John Robb,
D. Kurtz,
Wm.Y. Hansell,
Samuel J. Potts,
Jno. Litle,
S. Rock well.
Dec. 31, 1835 | 7 Stat., 487.
Whereas the western Cherokees have appointed a delegation to visit the eastern
Cherokees to assure them of the friendly disposition of their people and their desire that
the nation should again be united as one people and to urge upon them the expediency
of accepting the overtures of the Government; and that, on their removal they may be
assured of a hearty welcome and an equal participation with them in all the benefits and
privileges of the Cherokee country west and the undersigned two of said delegation being
the only delegates in the eastern nation from the west at the signing and sealing of the
treaty lately concluded at New Echota between their eastern brethren and the United
States; and having fully understood the provisions of the same they agree to it in behalf of
the western Cherokees. But it is expressly understood that nothing in this treaty shall
affect any claims of the western Cherokees on the United States.
Page 448
In testimony whereof, we have, this 31st day of December, 1835, hereunto set our hands
and seals.
James Rogers,
John Smith.
Delegates from the western Cherok ees.
http://digital.library.okstate.edu/kappler/Vol2/treaties/che0439.htm
Treaty of Hopewell
(treaty between Confederation Congress and
Cherokee 1785)
INDIAN AFFAIRS: LAWS AND TREATIES
Vol. II, Treaties
Compiled and edited by Charles J. Kappler. Washington : Government Printing Office,
1904.
TREATY WITH THE CHEROKEE, 1785.
Nov. 28, 1785. | 7 Stat., 18.
Articles concluded at Hopewell, on the Keowee, between Benjamin Hawkins, Andrew
Pickens, Joseph Martin, and Lachlan M'Intosh, Commissioners Plenipotentiary of the
United States of America, of the one Part, and the Head-Men and Warriors of all the
Cherokees of the other.
The Commissioners Plenipotentiary of the United States, in Congress assembled, give
peace to all the Cherokees, and receive them into the favor and protection of the United
States of America, on the following conditions:
Page 9
ARTICLE 1.
The Head-Men and Warriors of all the Cherokees shall restore all the prisoners, citizens
of the United States, or subjects of their allies, to their entire liberty: They shall also
restore all the Negroes, and all other property taken during the late war from the citizens,
to such person, and at such time and place, as the Commissioners shall appoint.
ARTICLE 2.
The Commissioners of the United States in Congress assembled, shall restore all the
prisoners taken from the Indians, during the late war, to the Head-Men and Warriors of
the Cherokees, as early as is practicable.
ARTICLE 3.
The said Indians for themselves and their respective tribes and towns do acknowledge all
the Cherokees to be under the protection of the United States of America, and of no other
sovereign whosoever.
ARTICLE 4.
The boundary allotted to the Cherokees for their hunting grounds, between the said
Indians and the citizens of the United States, within the limits of the United States of
America, is, and shall be the following, viz. Beginning at the mouth of Duck river, on the
Tennessee; thence running north-east to the ridge dividing the waters running into
Cumberland from those running into the Tennessee; thence eastwardly along the said
ridge to a north-east line to be run, which shall strike the river Cumberland forty miles
above Nashville; thence along the said line to the river; thence up the said river to the
ford where the Kentucky road crosses the river; thence to Campbell's line, near
Cumberland gap; thence to the mouth of Claud's creek on Holstein; thence to the
Chimney-top mountain; thence to Camp-creek, near the mouth of Big Limestone, on
Nolichuckey; thence a southerly course six miles to a mountain; thence south to the
North-Carolina line; thence to the South-Carolina Indian boundary, and along the same
south-west over the top of the Oconee mountain till it shall strike Tugaloo river; thence a
direct line to the top of the Currohee mountain; thence to the head of the south fork of
Oconee river.
ARTICLE 5.
If any citizen of the United States, or other person not being an Indian, shall attempt to
settle on any of the lands westward or southward of the said boundary which are hereby
allotted to the Indians for their hunting grounds, or having already settled a nd will not
remove from the same within six months after the ratification of this treaty, such person
shall forfeit the protection of the United States, and the Indians may punish him or not as
they please: Provided nevertheless, That this article shall no t extend to the people settled
between the fork of French Broad and Holstein rivers, whose particular situation shall be
transmitted to the United States in Congress assembled for their decision thereon, which
the Indians agree to abide by.
ARTICLE 6.
If any Indian or Indians, or person residing among them, or who shall take refuge in their
nation, shall commit a robbery, or murder, or other capital crime, on any citizen of the
United States, or person
Page 10
under their protection, the nation, or the tribe to which such offender or offenders may
belong, shall be bound to deliver him or them up to be punished according to the
ordinances of the United States; Provided, that the punishment shall not be greater than if
the robbery or murder, or other capital crime had been committed by a citizen on a
citizen.
ARTICLE 7.
If any citizen of the United States, or person under their protection, shall commit a
robbery or murder, or other capital crime, on any Indian, such offender or offenders shall
be punished in the same manner as if the murder or robbery, or other capital crime, had
been committed on a citizen of the United States; and the punishment shall be in
presence of some of the Cherokees, if any shall attend at the time and place, and that
they may have an opportunity so to do, due notice of the time of such intended
punishment shall be sent to some one of the tribes.
ARTICLE 8.
It is understood that the punishment of the innocent under the idea of retaliation, is unjust,
and shall not be practiced on either side, except where there is a manifest violation of this
treaty; and then it shall be preceded first by a demand of justice, and if refused, then by a
declaration of hostilities.
ARTICLE 9.
For the benefit and comfort of the Indians, and for the prevention of injuries or
oppressions on the part of the citizens or Indians, the United States in Congress
assembled shall have the sole and exclusive right of regulating the trade with the Indians,
and managing all their affairs in such manner as they think proper.
ARTICLE 10.
Until the pleasure of Congress be known, respecting the ninth article, all traders, citizens
of the United States, shall have liberty to go to any of the tribes or towns of the
Cherokees to trade with them, and they shall be protected in their persons and property,
and kindly treated.
ARTICLE 11.
The said Indians shall give notice to the citizens of the United States, of any designs
which they may know or suspect to be formed in any neighboring tribe, or by any person
whosoever, against the peace, trade or interest of the United States.
ARTICLE 12.
That the Indians may have full confidence in the justice of the United States, respecting
their interests, they shall have the right to send a deputy of their choice, whenever they
think fit, to Congress.
ARTICLE 13.
The hatchet shall be forever buried, and the peace given by the United States, and
friendship re-established between the said states on the one part, and all the Cherokees
on the other, shall be universal;
Page 11
and the contracting parties shall use their utmost endeavors to maintain the peace given
as aforesaid, and friendship re-established.
In witness of all and every thing herein determined, between the United States of America
and all the Cherokees, we, their underwritten Commissioners, by virtue of our full powers,
have signed this definitive treaty, and have caused our seals to be hereunto affixed. Done
at Hopewell, on the Keowee, this twenty-eighth of November, in the year of our Lord one
thousand seven hundred and eighty-five.
Benjamin Hawk ins, [L. S.]
And'w Pick ens, [L. S.]
Jos. Martin, [L. S.]
Lach'n McIntosh Koatohee, or Corn Tassel of Toquo, his x mark , [L. S.]
Scholauetta, or Hanging Man of Chota, his x mark , [L. S.]
Tusk egatahu, or Long Fellow of Chistohoe, his x mark , [L. S.]
Oosk wha, or Abraham of Chilk owa, his x mark , [L. S.]
Kolak usta, or Prince of Noth, his x mark , [L. S.]
Newota, or the Gritzs of Chicamaga, his x mark , [L. S.]
Konatota, or the Rising Fawn of Highwassay, his x mark , [L. S.]
Tuck asee, or Young Terrapin of Allajoy, his x mark , [L. S.]
Toostak a, or the Wak er of Oostanawa, his x mark , [L. S.]
Untoola, or Gun Rod of Seteco, his x mark , [L. S.]
Unsuok anail, Buffalo White Calf New Cussee, his x mark , [L. S.]
Kostayeak , or Sharp Fellow Wataga, his x mark , [L. S.]
Chonosta, of Cowe, his x mark , [L. S.]
Chescoonwho, Bird in Clos e of Tomotlug, his x mark , [L. S.]
Tuck asee, or Terrapin of Hight owa, his x mark , [L. S.]
Ches etoa, or the Rabbit of Tlacoa, his x mark , [L. S.]
Ches ecotetona, or Yellow Bird of the Pine Log, his x mark , [L. S.]
Sk etalosk a, Second Man of Tillico, his x mark , [L. S.]
Chok asatahe, Chick asaw Killer Tasonta, his x mark , [L. S.]
Onanoot a, of Koosoate, his x mark , [L. S.]
Ook oseta, or Sower Mush of Kooloque, his x mark , [L. S.]
Umatooetha, the Water Hunter Choik amawga, his x mark , [L. S.]
Wyuk a, of Look out Mountain, his x mark , [L. S.]
Tulco, or Tom of Chatuga, his x mark , [L. S.]
Will, of Ak oha, his x mark, [L. S.]
Necatee, of Sawta, his x mark , [L. S.]
Amok ontak ona, Kutcloa, his x mark , [L. S.]
Kowetat ahee, in Frog Town, his x mark , [L. S.]
Keuk uck , Talcoa, his x mark , [L. S.]
Tulatisk a, of Chaway, his x mark , [L. S.]
Wooaluk a, the Waylayer, Chot a, his x mark , [L. S.]
Tatliusta, or Porpoise of Tilassi, his x mark , [L. S.]
John, of Little Tallico, his x mark , [L. S.]
Sk eleak , his x mark, [L. S.]
Ak onoluchta, the Cabin, his x mark , [L. S.]
Cheanok a, of Kawet ak ac, his x mark , [L. S.]
Yellow Bird, his x mark , [L. S.]
Witness:
Wm. Blount,
Sam'l Taylor, Major.,
John Owen,
Jess. Walton,
Jno. Cowan, capt. comm'd't,
Thos. Gregg,
W. Hazzard.
James Madison,
Arthur Cooley,.
Sworn interpreters
U.S. Supreme Court
WORCESTER v. STATE OF GA., 31 U.S. 515 (1832)
31 U.S. 515 (Pet.)
SAMUEL A. WORCEST ER, PLAINTIFF IN ERROR
v.
T HE STAT E OF GEORGIA.
January Term, 1832
[31 U.S. 515, 521 ] THIS was a writ of error to the superior court for the county of Gwinnett, in the state of Georgia.
On the 22d December 1830, the legislature of the state of Georgia passed the following act:
'An act of prevent the exercise of assumed and arbitrary power, by all persons, under pretext of authority
from the Cherokee Indians and their laws, and to prevent white persons from residing within that part of the
chartered limits of Georgia, occupied by the Cherokee Indians, and to provide a guard for the protection of
the gold mines, and to enforce the laws of the state within the aforesaid territory.
'Be it enacted by the senate and house of representatives of the state of Georgia in general assembly met, and
it is hereby enacted by the authority of the same, that, after the 1st day of February 1831, it shall not be lawful
for any person or persons, under colour or pretence of authority from said Cherokee tribe, or as headmen,
chiefs or warriors of said tribe, to cause or procure by any means the assembling of any council or other
pretended legislative body of the said Indians or others living among them, for the purpose of legislating (or
for any other purpose whatever). And persons offending against the provisions of this section shall guilty of a
high misdemeanour, and subject to indictment therefor, and, on conviction, shall be punished by
confinement at hard labour in the penitentiary for the space of four years.
'Sec. 2. And be it further enacted by the authority aforesaid, that, after the time aforesaid, it shall not be
lawful for any person or persons, under pretext of authority from the Cherokee tribe, or as representatives,
chiefs, headmen or warriors of said tribe, to meet or assemble as a council, assembly, [31 U.S. 515, 522]
convention, or in any other capacity, for the purpose of making laws, orders or regulations for said tribe. And
all persons offending against the provisions of this section, shall be guilty of a high misdemeanour, and
subject to an indictment, and on conviction thereof, shall undergo an imprisonment in the penitentiary at
hard labour for the space of four years.
'Sec. 3. And be it further enacted by the authority aforesaid, that, after the time aforesaid, it shall not be
lawful for any person or persons, under colour or by authority of the Cherokee tribe, or any of its laws or
regulations, to hold any court or tribunal whatever, for the purpose of hearing and determining causes,
either civil or criminal; or to give any judgment in such causes, or to issue, or cause to issue, any process
against the person or property of any of said tribe. And all persons offending against the provisions of this
section shall be guilty of a high misdemeanour, and subject to indictment, and, on conviction thereof, shall
be imprisoned in the penitentiary at hard labour for the space of four years.
'Sec. 4. And be it further enacted by the authority aforesaid, that, after the time aforesaid, it shall not be
lawful for any person or persons, as a ministerial officer, or in any other capacity, to execute any precept,
command or process issued by any court or tribunal in the Cherokee tribe, on the persons or property of any
of said tribe. And all persons offending against the provisions of this section, shall be guilty of a trespass, and
subject to indictment, and, on conviction thereof, shall be punished by fine and imprisonment in the jail or
in the penitentiary, not longer than four years, at the discretion of the court.
'Sec. 5. And be it further enacted by the authority aforesaid, that, after the time aforesaid, it shall not be
lawful for any person or persons to confiscate, or attempt to confiscate, or otherwise to cause a forfeiture of
the property or estate of any Indian of said tribe, in consequence of his enrolling himself and family for
emigration, or offering to enrol for emigration, or any other act of said Indian, in furtherance of his intention
to emigrate. And persons offending against the provisions of this section shall be guilty of high
misdemeanour, and, on conviction, shall undergo an imprisonment in the penitentiary at hard labour for the
space of four years. [31 U.S. 515, 523] 'Sec. 6. And be it further enacted by the authority aforesaid, that none
of the provisions of this act shall be so construed as to prevent said tribe, its headmen, chiefs or other
representatives, from meeting any agent or commissioner, on the part of this state or the United States, for
any purpose whatever.
'Sec. 7. And be it further enacted by the authority aforesaid, that all white persons residing within the limits
of the Cherokee nation, on the 1st day of March next, or at any time thereafter, without a license or permit
from his excellency the governor, or from such agent as his excellency the governor shall authorise to grant
such permit or license, and who shall not have taken the oath hereinafter required, shall be guilty of a high
misdemeanour, and, upon conviction thereof, shall be punished by confinement to the penitentiary at hard
labour for a term not less than four years: provided, that the provisio ns of this section shall not be so
construed as to extend to any authorised agent or agents of the government of the United States or of this
state, or to any person or persons who may rent any of those improvements which have been abandoned by
Indians who have emigrated west of the Mississippi: provided, nothing contained in this section shall be so
construed as to extend to white females, and all male children under twenty -one years of age.
'Sec. 8. And be it further enacted by the authority aforesaid, that all white persons, citizens of the state of
Georgia, who have procured a license in writing from his excellency the governor, or from such agent as his
excellency the governor shall authorise to grant such permit or license, to reside within the limits of the
Cherokee nation, and who have taken the following oath, viz. 'I, A. B., do solemnly swear (or affirm, as the
case may be) that I will support and defend the constitution and laws of the state of Georgia, and uprightly
demean myself as a citizen thereof, so help me God,' shall be, and the same are hereby declared, exempt and
free from the operation of the seventh section of this act.
'Sec. 9. And be it further enacted, that his excellency the governor be, and he is hereby, authorized to grant
licenses to reside within the limits of the Cherokee nation, according to the provisions of the eighth section of
this act.
'Sec. 10. And be it further enacted by the authority aforesaid, [31 U.S. 515, 524] that no person shall collect or
claim any toll from any person, for passing any turnpike gate or toll bridge, by authority of any act or law of
the Cherokee tribe, or any chief or headman or men of the same.
'Sec. 11. And be it further enacted by the authority aforesaid, that his excellency the governor be, and he is
hereby, empowered, should he deem it necessary, either for the protection of the mines, or for the
enforcement of the laws of force within the Cherokee nation, to raise and organize a guard, t o be employed
on foot, or mounted, as occasion may require, which shall not consist of more than sixty persons, which
guard shall be under the command of the commissioner or agent appointed by the governor, to protect the
mines, with power to dismiss from the service any member of said guard, on paying the wages due for
services rendered, for disorderly conduct, and make appointments to fill the vacancies occasioned by such
dismissal.
'Sec. 12. And be it further enacted by the authority aforesaid, that eac h person who may belong to said guard,
shall receiver for his compensation at the rate of fifteen dollars per month when on foot, and at the rate of
twenty dollars per month when mounted, for every month that such person is engaged in actual service; and,
in the event, that the commissioner or agent, herein referred to, should die, resign, or fail to perform the
duties herein required of him, his excellency the governor is hereby authorised and required to appoint, in
his stead, some other fit and proper person to the command of said guard; and the commissioner or agent,
having the command of the guard aforesaid, for the better discipline thereof, shall appoint three sergeants,
who shall receive at the rate of twenty dollars per month while serving on foot, and twenty- five dollars per
month, when mounted, as compensation whilst in actual service.
'Sec. 13. And be it further enacted by the authority aforesaid, that the said guard, or any member of them,
shall be, and they are hereby, authorised and empowered to arrest any person legally charged with, or
detected in, a violation of the laws of this state, and to convey, as soon as practicable, the person so arrested
before a justice of the peace, judge of the superior or justice of inferior court of this state , to be dealt [31 U.S.
515, 525] with according to law; and the pay and support of said guard be provided out of the fund already
appropriated for the protection of the gold mines.'
The legislature of Georgia, on the 19th December 1829, passed the follo wing act:
'An act to add the territory lying within the chartered limits of Georgia, and now in the occupancy of the
Cherokee Indians, to the counties of Carroll, De Kalb, Gwinnett, Hall, and Habersham, and to extend the
laws of this state over the same, and to annul all laws and ordinances made by the Cherokee nation of
Indians, and to provide for the compensation of officers serving legal process in said territory, and to
regulate the testimony of Indians, and to repeal the ninth section of the act of 1828 upon this subject.
'Sec. 1. Be it enacted by the senate and house of representatives of the state of Georgia in general assembly
met, and it is hereby enacted by the authority of the same, that from and after the passing of this act, all that
part of the unlocated territory within the limits of this state, and which lies between the Alabama line and the
old path leading from the Buzzard Roost on the Chattahoochee, to Sally Hughes's, on the Hightower river;
thence to Thomas Pelet's, on the old federal road; thence with said road to the Alabama line be, and the same
is hereby added to, and shall become a part of, the county of Carroll.
'Sec. 2. And be it further enacted, that all that part of said territory lying and being north of the last
mentioned line, and south of the road running from Charles Gait's ferry, on the Chattahoochee river, to Dick
Roe's, to where it intersects with the path aforesaid, be, and the same is hereby added to, and shall become a
part of, the county of De Kalb.
'Sec. 3. And be it further enacted, that all that part of the said territory lying north of the last mentioned line,
and south of a line commencing at the mouth of Baldridge's creek; thence up said creek to its source; from
thence to where the federal road crosses the Hightower; thence with said road to the Tennessee line, be, and
the same is hereby added to, and shall become part of, the county of Gwinnett.
'Sec. 4. And be it further enacted, that all that part of the said territory lying north of said last mentioned
line, and south [31 U.S. 515, 526] of a line to commence on the Chestatee river, at the mouth of Yoholo creek;
thence up said creek to the top of the Blue ridge; thence to the head waters of Notley river; thence down said
river to the boundary line of Georgia, be, and the same is hereby added to, and shall become a part of, the
county of Hall.
'Sec. 5. And be it further enacted, that all that part of said territory lying north of said last mentioned line,
within the limits of this state, be, and the same is hereby added to, and shall become a part of, the county of
Habersham.
'Sec. 6. And be it further enacted, that all the laws, both civil and criminal, of this state, be, and the same are
hereby extended over said portions of territory, respectively; and all persons whatever, residing within the
same, shall, after the 1st day of June next, be subject and liable to the operation of said laws, in the same
manner as other citizens of this state, or the citizens of said counties, respectively; and all writs and
processes whatever, issued by the courts or officers of said courts, shall extend over, and operate on, the
portions of territory hereby added to the same, respectively.
'Sec. 7. And be it further enacted, that after the 1st day of June next, all laws, or dinances, orders and
regulations, of any kind whatever, made, passed or enacted, by the Cherokee Indians, either in general
council or in any other way whatever, or by any authority whatever of said tribe, be, and the same are hereby
declared to be, null and void, and of no effect, as if the same had never existed; and in all cases of indictment
or civil suits, it shall not be lawful for the defendant to justify under any of said laws, ordinances, orders or
regulations; nor shall the courts of this state permit the same to be given in evidence on the trial of any suit
whatever.
'Sec. 8. And be it further enacted, that it shall not be lawful for any person or body of persons, by arbitrary
power or by virtue of any pretended rule, ordinance, law or custom of said Cherokee nation, to prevent by
threats, menaces or other means, or endeavour to prevent, any Indian of said nation, residing within the
chartered limits of this state, from enrolling as an emigrant, or actually emigrating or removing from said
nation; nor shall it be lawful for any person or body of persons, by arbitrary power or by virtue of any
pretended rule, [31 U.S. 515, 527 ] ordinance, law or custom of said nation, to punish, in any manner, or to
molest either the person or property, or to abridge the rights or privileges of any Indian, for enrolling his or
her name as an emigrant, or for emigrating or intending to emigrate, from said nation.
'Sec. 9. And be it further enacted, that any person or body of persons offending against the provisions of the
foregoing section, shall be guilty of a high misdemeanour, subject to indictment, and on conviction shall be
punished by confinement in the common jail of any county of this state, or by confinement at hard labour in
the penitentiary, for a term not exceeding four years, at the discretion of the court.
'Sec. 10. And be it further enacted, that it shall not be lawful for any person or body of persons, by arbitrary
power, or under colour of any pretended rule, ordinance, law or custom of said nation, to prevent or offer to
prevent, or deter any Indian headman, chief or warrior of said nation, residing within the chartered limits of
this state, from selling or ceding to the United States, for the use of Georgia, the whole or any part of said
territory, or to prevent or offer to prevent, any Indian, headman, chief or warrior of said nation, residing as
aforesaid, from meeting in council or treaty any commissioner or commissioners on the part of the United
States, for any purpose whatever.
'Sec. 11. And be it further enacted, that any person or body of persons offending against the provisions of the
foregoing sections, shall be guilty of a high misdemeanour, subject to indictment, and on conviction shall be
confined at hard labour in the penitentiary for not less than four nor longer than six years, at the discretion
of the court.
'Sec. 12. And be it further enacted, that it shall not be lawful for any person or body of persons, by arbitrary
force, or under colour of any pretended rules, ordinances, law or custom of said nation, to take the life of any
Indian residing as aforesaid, for enlisting as an emigrant; attempting to emigrate; ceding, or attempting to
cede, as aforesaid, the whole or any part of the said territory; or meeting or attempting to meet, in treaty or
in council, as aforesaid, any commissioner or commissioners aforesaid; and any person or body of persons
offending against the provisions of this section, shall be guilty of [31 U.S. 515, 528] murder, subject to
indictment, and, on conviction, shall suffer death by hanging.
'Sec. 13. And be it further enacted, that, should any of the foregoing offences be committed under colour of
any pretended rules, ordinances, custom or law of said nation, all persons acting therein, either as
individuals or as pretended executive, ministerial or judicial officers, shall be deemed and considered as
principals, and subject to the pains and penalties hereinbefore described.
'Sec. 14. And be it further enacted, that for all demands which may come within the jurisdiction of a
magistrate's court, suit may be brought for the same in the nearest district of the county to which the
territory is hereby annexed; and all officers serving any legal process on any person living on any portion of
the territory herein named, shall be entitled to recover the sum of five cents for every mile he may ride to
serve the same, after crossing the present limits of the said counties, in addition to the fees already allowed
by law; and in case any of the said officers should be resisted in the execution of any legal process issued by
any court or magistrate, justice of the inferior court, or judge of the superior court of any of said counties, he
is hereby authorised to call out a sufficient number of the militia of said counties to aid and protect him in
the execution of this duty.
'Sec. 15. And be it further enacted, that no Indian or descendant of any Indian, residing within the Creek or
Cherokee nations of Indians, shall be deemed a competent witness in any court of this state to which a white
person may be a party, except such white person resides within the said nation.'
In September 1831, the grand jurors for the county of Gwinnett in the state of Georgia, presented to the superior
court of the county the following indictment:
'Georgia, Gwinnett county:-The grand jurors, sworn, chosen and selected for the county of Gwinnett, in the
name and behalf of the citizens of Georgia, charge and accuse Elizur Butler, Samuel A. Worcester, James
Trott, Samuel Mays, Surry Eaton, Austin Copeland, and Edward D. Losure, white persons of said county,
with the offence of 'residing within the limits of the Cherokee nation without a license:' For that the said
Elizur Butler, Samuel A. Worcester, [31 U.S. 515, 529] James Trott, Samuel Mays, Surry Eaton, Austin
Copeland and Edward D. Losure, white persons, as aforesaid, on the 15th day of July 1831, did reside in that
part of the Cherokee nation attached by the laws of said state to the said county, and in the county aforesaid,
without a license or permit from his excellency the governor of said state, or from any agent authorised by
his excellency the governor aforesaid to grant such permit or license, and without having taken the oath to
support and defend the constitution and laws of the state of Georgia, and uprightly to demean themselves as
citizens thereof, contrary to the laws of said state, the good order, peace and dignity thereof.'
To this indictment, the plaintiff in error pleaded specially, as follows:
'And the said Samuel A. Worcester, in his own proper person, comes and says, that this court ought not to
take further cognizance of the action and prosecution aforesaid, because, he says, that, on the 15th day of
July in the year 1931, he was, and still is, a resident in the Cherokee nation; and that the said supposed
crime, or crimes, and each of them, were committed, if committee at all, at the town of New Echota, in the
said Cherokee nation, out of the jurisdiction of this court, and not in the county Gwinnett, or elsewhere
within the jurisdiction of this court. And this defendant saith, that he is a citizen of the state of Vermont, one
of the United States of America, and that he entered the aforesaid Cherokee nation in the capacity of a duly
authorised missionary of the American Board of Commissioners for Foreign Missions, under the authority of
the president of the United States, and has not since been required by him to leave it: that he was, at the time
of his arrest, engaged in preaching the gospel to the Cherokee Indians, and in translating the sacred
Scriptures into their language, with the permission and approval of the said Cherokee nation, and in
accordance with the humane policy of the government of the United States, for the civilization and
improvement of the Indians; and that his residence there, for this purpose, is the residence charged in the
aforesaid indictment: and this defendant further saith, that this prosecution the state of Georgia ought not to
have or maintain, because, he saith, that several treaties have, from time to time, been entered [31 U.S. 515,
530] into between the United States and the Cherokee nation of Indians, to wit: at Hopewell, on the 28th
day of November 1785; at Holston, on the 2d day of July 1791; at Philadelphia, on the 26th day of June 1794 ;
at Tellico, on the 2d day of October 1798; at Tellico, on the 24th day of October 1804; at Tellico, on the 25th
day of October 1805; at Tellico, on the 27th day of October 1805; at Washington city, on the 7th day of
January 1805; at Washington city, on the 22d day of March 1816; at the Chickasaw Council House, on the
14th day of September 1816; at the Cherokee Agency, on the 8th day of July 1817, and at Washington city, on
the 27th day of February 1819: all which treaties have been duly ratified by the se nate of the United States of
America; and, by which treaties the United States of America acknowledge the said Cherokee nation to be a
sovereign nation, authorised to govern themselves, and all persons who have settled within their territory,
free from any right of legislative interference by the several states composing the United States of America,
in reference to acts done within their own territory; and, by which treaties, the whole of the territory now
occupied by the Cherokee nation, on the east of the Mississippi, has been solemnly guarantied to them; all of
which treaties are existing treaties at this day, and in full force. By these treaties, and particularly by the
treaties of Hopewell and Holston, the aforesaid territory is acknowledged to lie without the jurisdiction of
the several states composing the union of the United States; and, it is thereby specially stipulated, that the
citizens of the United States shall not enter the aforesaid territory, even on a visit, without a passport from
the governor of a state, or from some one duly authorised thereto by the president of the United States: all of
which will more fully and at large appear, by reference to the aforesaid treaties. And this defendant saith,
that the several acts charged in the bill of indictment, were done, or omitted to be done, if at all, within the
said territory so recognized as belonging to the said nation, and so, as aforesaid, held by them, under the
guarantee of the United States: that, for those acts, the defendant is not ame nable to the laws of Georgia, nor
to the jurisdiction of the courts of the said state; and that the laws of the state of Georgia, which profess to
add the said territory to the several adjacent counties of the said state, and to extend the laws of Georgia over
the said territory, [31 U.S. 515, 531 ] and persons inhabiting the same; and, in particular, the act on which
this indictment against this defendant is grounded, to wit: 'an act entitled an act to prevent the exercise of
assumed and arbitrary power, by all persons, under pretext of authority from the Cherokee Indians, and
their laws, and to prevent white persons from residing within that part of the chartered limits of Georgia,
occupied by the Cherokee Indians, and to provide a guard for the protectio n of the gold mines, and to
enforce the laws of the state within the aforesaid territory,' are repugnant to the aforesaid treaties; which,
according to the constitution of the United States, compose a part of the supreme law of the land; and that
these laws of Georgia are, therefore, unconstitutional, void, and of no effect: that the said laws of Georgia are
also unconstitutional and void, because they impair the obligation of the various contracts formed by and
between the aforesaid Cherokee nation and the said United States of America, as above recited: also, that the
said laws of Georgia are unconstitutional and void, because they interfere with, and attempt to regulate and
control the intercourse with the said Cherokee nation, which, by the said constitution, belongs exclusively to
the congress of the United States; and because the said laws are repugnant to the statute of the United
States, passed on ___ day of March 1802, entitled 'an act to regulate trade and intercourse with the Indian
tribes, and to preserve peace on the frontiers:' and that, therefore, this court has no jurisdiction to cause this
defendant to make further or other answer to the said bill of indictment, or further to try and punish this
defendant for the said supposed offence or offences alleged in the bill of indictment, or any of them: and,
therefore, this defendant prays judgment whether he shall be held bound to answer further to said
indictment.'
This plea was overruled by the court; and the jurisdiction of the superior court of the county of Gwinnett was
sustained by the judgment of the court.
The defendant was then arraigned, and pleaded 'not guilty:' and the case came on for trial on the 15th of September
1831, when the jury found the defendants in the indictment guilty. On the same day the court pronounced sentence
on the parties so convicted, as follows:- [31 U.S. 515, 532] 'The State v. B. F. Thompson and others. Indictment for
residing in the Cherokee nation without license. Verdict, Guilty.'
'The State v. Elizur Butler, Samuel A. Worcester and others. Indictment for residing in the Cherokee nation
without license. Verdict, Guilty.'
'The defendants, in both of the above cases, shall be kept in close custody by the sheriff of this county, until
they can be transported to the penitentiary of this state, and the keeper thereof is hereby directed to receive
them, and each of them, into his custody, and keep them, and each of them, at hard labo ur in said
penitentiary, for and during the term of four years.'
A writ of error was issued on the application of the plaintiff in error, on the 27th of October 1831, which, with the
following proceedings thereon, was returned to this court.
'United States of America, ss.-The president of the United States to the honourable the judges of the superior
court for the county of Gwinnett, in the state of Georgia, greeting:
'Because in the record and proceedings, as also in the rendition of the judgment of a plea which is in the said
superior court, for the county of Gwinnett, before you, or some of you, between the state of Georgia, plaintiff,
and Samuel A. Worcester, defendant, on an indictment, being the highest court of law in said state in which a
decision could be had in said suit, a manifest error hath happened, to the great damage of the said Samuel A.
Worcester, as by his complaint appears. We being willing that error, if any hath been, should be duly
corrected, and full and speedy justice done to the parties aforesaid in this behalf, do command you, if
judgment be therein given, that then under your seal distinctly and openly, you send the record and
proceedings aforesaid, with all things concerning the same, to the supreme court of the United States,
together with this writ, so that you have the same at Washington on the second Monday of January next, in
the said supreme court, to be then and there held; that the record and proceedings aforesaid being inspected,
the said supreme court may cause further to be done therein, to correct that error, what of right, and
according to the laws and custom of the United States, should be done. [31 U.S. 515, 533] 'Witness, the
honourable John Marshall, chief justice of the said supreme court, the first Monday of A ugust in the year of
our Lord one thousand eight hundred and thirty -one.
WM. THOS. CARROLL,
Clerk of the Supreme Court of the United States.
'Allowed by HENRY BALDWIN.
'United States of America to the state of Georgia, greeting:
'You are hereby cited and admonished to be, and appear at a supreme court of the United States, to be
holden at Washington, on the second Monday of January next, pursuant to a writ of error filed in the clerk's
office of the superior court for the county of Gwinnett, in the state of Georgia, wherein Samuel A. Worcester
is plaintiff in error, and the state of Georgia is defendant in error, to show cause, if any there be, why
judgment rendered against the said Samuel A. Worcester, as in the said writ of error mentioned, should not
be corrected, and why speedy justice should not be done to the parties in that behalf.
'Witness, the honourable Henry Baldwin, one of the justices of the supreme court of the United States, this
27th day of October, in the year of our Lord one thousand eight hundred and thirty -one.
HENRY BALDWIN.
'State of Georgia, county of Gwinnett, sct:-On this 26th day of November, in the year of our Lord eighteen
hundred and thirty-one, William Potter personally appeared before the subscriber, John Mills, a justice of
the peace in and for said county, and being duly sworn on the holy evangelists of Almighty God, deposeth
and saith, that on the 24th day of November instant, he delivered a true copy of the within citation to his
excellency, Wilson Lumpkin, governor of the state of Georgia, and another true copy thereof he delivered, on
the 22d day of November, instant, to Charles J. Jenkins, Esq. attorney -general of the state aforesaid,
showing to the said governor and attorney -general, respectively, at the times of delivery herein stated, the
within citation. WM. POTTER.
'Sworn to and subscribed before me, the day and year above written. JOHN MILLS, J. P.'
This writ of error was returned to the supreme court with [31 U.S. 515, 534] copies of all the proceedings in the
supreme court of the county of Gwinnett, as stated, and accompanied with certificates of the clerk of that court in the
following terms:
'Georgia, Gwinnett county. I, John G. Park, clerk of the superior court of the county of Gwinnett, and state
aforesaid, do certify that the annexed and foregoing is a full and complete exemplification of the proceedings
and judgments had in said court against Samuel A. Worcester, one of the defendants in the case therein
mentioned, as they remain, of record, in the said superior court.
'Given under my hand, and seal of the court, this 28th day of November 1831.
JOHN G. PARK, Clerk.
'I also certify, that the original bond, of which a copy of annexed ( the bond was in the usual form), and also a
copy of the annexed writ of error, were duly deposited and filed in the clerk's office of said court, on the 10th
day of November in the year of our Lord eighteen hundred and thirty -one.
'Given under my hand and seal aforesaid, the day and date above written.
JOHN G. PARK, Cerk.'
The case of Elizur Butler, plaintiff in error v. The State of Georgia, was brought before the supreme court in the same
manner.
The case was argued for the plaintiffs in error by Mr. Sergeant and Mr Wirt, with whom also was Mr Elisha W.
Chester.
The following positions were laid down and supported by Mr Sergeant and Mr Wirt.
1. That the court had jurisdiction of the question brought before them by the writ of error; and the jurisdiction
extended equally to criminal and to civil cases.
2. That the writ of error was duly issued, and duly returned, so as to bring the question regularly before the court,
under the constitution and laws of the United States; and oblige the court to take cognizance of it.
3. That the statute of Georgia under which the plaintiffs in error were indicted and convicted, was unconstitutional
and void. Because:- [31 U.S. 515, 535] 1. By the constitution of the United States, the establishment and regulation of
intercourse with the Indians belonged, exclusively, to the government of the United States.
2. The power thus given, exclusively, to the government of the United States had been exercised by treaties and by
acts of congress, now in force, and applying directly to the case of the Cherokees; and that no state could int erfere,
without a manifest violation of such treaties and laws, which by the constitution were the supreme law of the land.
3. The statute of Georgia assumed the power to change these regulations and laws; to prohibit that which they
permitted; and to make that criminal which they declared innocent or meritorious; and to subject to condemnation
and punishment, free citizens of the United States who had committed no offence.
4. That the indictment, conviction, and sentence being founded upon a statute of Georgia, which was
unconstitutional and void; were themselves also void and of no effect, and ought to be reversed.
These several positions were supported, enforced and illustrated by argument and authority.
The following authorities were referred to:
2 Laws U. S. 65, sect. 25; Judiciary Act of 1789; Miller v. Nicols, 4 Wheat. 311; Craig v. State of Missouri, 4 Peters,
400, 429; Fisher v. Cockerell, 5 Peters, 248; Ex parte Kearny, 7 Wheat. 38; Cohens v. Virginia, 6 Wheat. 264; Martin
v. Hunter, 1 Wheat. 304, 315, 361; 1 Laws U. S. 488, 470, 472, 482, 484, 486, 453; Blunt's Historical Sketch, 106,
107; Treaties with the Cherokees, 28th Nov. 1785, 2d July 1791, 26th July 1794, 2d Oct. 1798; 3 Laws U. S. 27, 125,
284, 303, 344, 460; 12 Journ. Congress, 82; Blunt's Hist. Sketch, 113, 110, 111, 114; Federalist, No. 42; 1 Laws U. S.
454; Holland v. Pack, Peck's Rep. 151; Johnson v. M'Intosh, 8 Wheat. 543; Cherokee Nation v. State of Georgia, 5
Peters, 1, 16, 27, 31, 48; Ware v. Hylton, 3 Dall. 199; Hughes v. Edwards, 9 Wheat. 489; Fisher v. Hamden, 1 Paine,
55; Hamilton v. Eaton, North Carolina Cases, 79; M'Cullough v. State of Maryland, 4 Wheat. 316; 2 Laws U. S. 121; 3
Laws U. S. 460; 6 Laws U. S. 750; Gibbon v. Ogden, 9 Wheat. 1. [31 U.S. 515, 536]
Mr Chief Justice MARSHALL delivered the opinion of the Court.
This cause, in every point of view in which it can be placed, is of the deepest interest.
The defendant is a state, a member of the union, which has exercised the powers of government over a people who
deny its jurisdiction, and are under the protection of the United States.
The plaintiff is a citizen of the state of Vermont, condemned to hard labour for four years in the penitentiary of
Georgia; under colour of an act which he alleges to be repugnant to the constitution, laws, and treaties of the United
States.
The legislative power of a state, the controlling power of the constitution and laws of the United States, the rights, if
they have any, the political existence of a once numerous and powerful people, the personal liberty of a citizen, are
all involved in the subject now to be considered.
It behoves this court, in every case, more especially in this, to examine into its jurisdiction with scrutinizing eyes;
before it proceeds to the exercise of a power which is controverted.
The first step in the performance of this duty is the inquiry whether the record is properly before the court.
It is certified by the clerk of the court, which pronounced the judgment of condemnation under which the plainti ff in
error is imprisoned; and is also authenticated by the seal of the court. It is returned with, and annexed to, a writ of
error issued in regular form, the citation being signed by one of the associate justices of the supreme court, and
served on the governor and attorney -general of the state, more than thirty days before the commencement of the
term to which the writ of error was returnable.
The judicial act (sec. 22, 25, 2 Laws U. S. 64, 65), so far as it prescribes the mode of proceeding, appears to have been
literally pursued.
In February 1797, a rule (6 Wheat. Rules) was made on this subject, in the following words: 'It is ordered by the
court, that the clerk of the court to which any writ of error shall be directed, may make return of the same by
transmitting a true [31 U.S. 515, 537 ] copy of the record, and of all proceedings in the same, under his hand and the
seal of the court.'
This has been done. But the signature of the judge has not been added to that of the clerk. The law does not requi re
it. The rule does not require it.
In the case of Martin v. Hunter's Lessee, 1 Wheat. 304, 361, an exception was taken to the return of the refusal of the
state court to enter a prior judgment of reversal by this court; because it was not made by the judge of the state court
to which the writ was directed: but the exception was overruled, and the return was held sufficient. In Buel v. Van
Ness, 8 Wheat. 312, also a writ of error to a state court, the record was authenticated in the same manner. No
exception was taken to it. These were civil cases. But it has been truly said at the bar, that, in regard to this process,
the law makes no distinction between a criminal and civil case. The same return is required in both. If the sanction
of the court could be necessary for the establishment of this position, it has been silently given.
M'Culloch v. The State of Maryland, 4 Wheat. 316, was a qui tam action, brought to recover a penalty, and the record
was authenticated by the seal of the court and the signature of the clerk, without that of a judge. Brown et al. v. The
State of Maryland, was an indictment for a fine and forfeiture. The record in this case, too, was authenticated by the
seal of the court and the certificate of the clerk. The practice is both ways.
The record, then, according to the judiciary act, and the rule and the practice of the court, is regularly before us. The
more important inquiry is, does it exhibit a case cognizable by this tribunal?
The indictment charges the plaintiff in error, and others, being white persons, with the offence of 'residing within the
limits of the Cherokee nation without a license,' and 'without having taken the oath to support and defend the
constitution and laws of the state of Georgia.'
The defendant in the state court appeared in proper person, and filed the following plea:
'And the said Samuel A. Worcester, in his own proper person, comes and says, that this court ought not to
take [31 U.S. 515, 538] further cognizance of the action and prosecution aforesaid, because, he says, that, on
the 15th day of July in the year 1831, he was, and still is, a resident in the Cherokee nation; and that the said
supposed crime or crimes, and each of them, were committed, if committed at all, at the town of New
Echota, in the said Cherokee nation, out of the jurisdiction of this court, and not in the county Gwinnett, or
elsewhere, within the jurisdiction of this court: and this defendant saith, that he is a citizen of the state of
Vermont, one of the United States of America, and that he entered the aforesaid Cherokee nation in the
capacity of a duly authorised missionary of the American Board of Commissioners for Foreign Missions,
under the authority of the president of the United States, and has not since been required by him to leave it:
that he was, at the time of his arrest, engaged in preaching the gospel to the Cherokee Indians, and in
translating the sacred scriptures into their language, with the permission and approval of the said Cherokee
nation, and in accordance with the humane policy of the government of the United States for the civilization
and improvement of the Indians; and that his residence there, for this purpose, is the residence charged in
the aforesaid indictment; and this defendant further saith, that this prosecution the state of Georgia ought
not to have or maintain, because, he saith, that several treaties have, from time to time, been entered into
between the United States and the Cherokee nation of Indians, to wit, at Hopewell, on the 28th day of
November 1785; at Holston, on the 2d day of July 1791; at Philadelphia, on the 26th day of June 1794; at
Tellico, on the 2d day of October 1798; at Tellico, on the 24th day of October 1804; at Tellico, on the 25th day
of October 1805; at Tellico, on the 27th day of October 1805; at Washington city, on the 7th day of January
1805; at Washington city, on the 22d day of March 1816; at the Chickasaw Council House, on the 14th day of
September 1816; at the Cherokee Agency, on the 8th day of July 1817; and at Washington city, on the 27th
day of February 1819: all which treaties have been duly ratified by the senate of the United States of America;
and, by which treaties, the United States of America acknowledge the said Cherokee nation to be a sovereign
nation, authorised to govern themselves, and all persons who have settled within their territory, free from
any right of legislative interference by the several states composing [31 U.S. 515, 539] the United States of
America, in reference to acts done within their own territory; and, by which treaties, the whole of the
territory now occcupied by the Cherokee nation, on the east of the Mississippi, has been solemnly guarantied
to them; all of which treaties are existing treaties at this day, and in full force. By these treaties, and
particularly by the treaties of Hopewell and Holston, the aforesaid territory is acknowledged to lie without
the jurisdiction of the several states composing the union of the United States; and, it is thereby specially
stipulated, that the citizens of the United States shall not enter the aforesaid territory, even on a visit,
without a passport from the governor of a state, or from some one duly authorised thereto, by the president
of the United States: all of which will more fully and at large appear, by reference to the aforesaid treaties.
And this defendant saith, that the several acts charged in the bill of indictment were done, or omitted to be
done, if at all, within the said territory so recognized as belonging to the said nation, and so, as aforesaid,
held by them, under the guarantee of the United States: that, for those acts, the defendant is not amenable to
the laws of Georgia, nor to the jurisdiction of the courts of the said state; and that the laws of the state of
Georgia, which profess to add the said territory to the several adjacent counties of the said state, and to
extend the laws of Georgia over the said territory, and persons inhabiting the same; and, in particular, the
act on which this indictment against this defendant is grounded, to wit, 'an act entitled an act to prevent the
exercise of assumed and arbitrary power, by all persons, under pretext of authority from the Cherokee
Indians, and their laws, and to prevent white persons from residing within that part of the chartered limits of
Georgia occupied by the Cherokee Indians, and to provide a guard for the protection of the gold mines, and
to enforce the laws of the state within the aforesaid territory,' are repugnant to the aforesaid treaties; which,
according to the constitution of the United States, compose a part of the supreme law of the land; and that
these laws of Georgia are, therefore, unconstitutional, void, and of no effect; that the said laws of Georgia are
also unconstitutional and void, because they impair the obligation of the various contracts formed by and
between the aforesaid Cherokee nation and the said United States of America, [31 U.S. 515, 540] as above
recited: also, that the said laws of Georgia are unconstitutional and void, because they interfere with, and
attempt to regulate and control the intercourse with the said Cherokee nation, which, by the said
constitution, belongs exclusively to the congress of the United States; and because the said laws are
repugnant to the statute of the United States, passed on the ___ day of March 1802, entitled 'an act to
regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers:' and that,
therefore, this court has no jurisdiction to cause this defendant to make further or other answer to the said
bill of indictment, or further to try and punish this defendant for the said supposed offence or offences
alleged in the bill of indictment, or any of them: and, therefore, this defendant prays judgment whether he
shall be held bound to answer further to said indictment.'
This plea was overruled by the court. And the prisoner, being arraigned, plead not guilty. The jury found a verdict
against him, and the court sentenced him to hard labour, in the penitentiary, for the term of four years.
By overruling this plea, the court decided that the matter it contained was not a bar to the action. The plea,
therefore, must be examined, for the purpose of determining whether it makes a case which brings the party within
the provisions of the twenty -fifth section of the 'act to establish the judicial courts of the United States.'
The plea avers, that the residence, charged in the indictment, was under the authority of the president of the United
States, and with the permission and approval of the Cherokee nation. That the treaties, subsisting between the
United States, and the Cherokees, acknowledge their right as a sovereign nation to govern themselves and all
persons who have settled within their territory, free from any right of legislative interference by the several states
composing the United States of America. That the act under which the prosecution was instituted is repugnant to the
said treaties, and is, therefore, unconstitutional and void. That the said act is, also, unconstitutional; because it
interferes with, and attempts to regulate and control, the intercourse with the Cherokee nation, which belongs,
exclusively, to congress; and, because, also, it is repugnant to the statute of the United States, entitled 'an act to [31
U.S. 515, 541 ] regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers.'
Let the averments of this plea be compared with the twenty -fifth section of the judicial act.
That section enumerates the cases in which the final judgment or decree of a state court may be revised in the
supreme court of the United States. These are, 'where is drawn in question the validity of a treaty, or statute of, or an
authority exercised under, the United States, and the decision is against their validity; or where is drawn in question
the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the
constitution, treaties or laws of the United States, and the decision is in favour of such their validity; or where is
drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held
under the United States, and the decision is against the title, right, privilege or exemption, specially set up or
claimed by either party under such clause of the said constitution, treaty, statute or commission.'
The indictment and plea in this case draw in question, we think, the validity of the treaties made by the United
States with the Cherokee Indians; if not so, their construction is certainly drawn in question; and the decision has
been, if not against their validity, 'against the right, privilege or exemption, specially set up and claimed under them.'
They also draw into question the validity of a statute of the state of Georgia, 'on the ground of its being repugnant to
the constitution, treaties and laws of the United States, and the decision is in favour of its validity.'
It is, then, we think, too clear for controversy, that the act of congress, by which this court is constituted, has given it
the power, and of course imposed on it the duty, of exercising jurisdiction in this case. This duty, however
unpleasant, cannot be avoided. Those who fill the judicial department have no discretion in selecting the subjects to
be brought before them. We must examine the defence set up in this plea. We must inquire and decide whether the
act of the legislature of Georgia, under which the plaintiff in error has been prosecuted and condemned, be
consistent with, or repugnant to, the constitution, laws and treaties of the United States. [31 U.S. 515, 542] It has
been said at the bar, that the acts of the legislature of Georgia seize on the whole Cherokee country, p arcel it out
among the neighbouring counties of the state, extend her code over the whole country, abolish its institutions and its
laws, and annihilate its political existence.
If this be the general effect of the system, let us inquire into the effect of the particular statute and section on which
the indictment is founded.
It enacts that 'all white persons, residing within the limits of the Cherokee nation on the 1st day of March next, or at
any time thereafter, without a license or permit from his exc ellency the governor, or from such agent as his
excellency the governor shall authorise to grant such permit or license, and who shall not have taken the oath
hereinafter required, shall be guilty of a high misdemeanour, and, upon conviction thereof, shall be punished by
confinement to the penitentiary, at hard labour, for a term not less than four years.'
The eleventh section authorises the governor, should he deem it necessary for the protection of the mines, or the
enforcement of the laws in force within the Cherokee nation, to raise and organize a guard,' &c.
The thirteenth section enacts, 'that the said guard or any member of them, shall be, and they are hereby authorised
and empowered to arrest any person legally charged with or detected in a violation of the laws of this state, and to
convey, as soon as practicable, the person so arrested, before a justice of the peace, judge of the superior, or justice of
inferior court of this state, to be dealt with according to law.'
The extra-territorial power of every legislature being limited in its action, to its own citizens or subjects, the very
passage of this act is an assertion of jurisdiction over the Cherokee nation, and of the rights and powers consequent
on jurisdiction.
The first step, then, in the inquiry, which the constitution and laws impose on this court, is an examination of the
right-fulness of this claim.
America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations,
independent of each other and of the rest of the world, having institutions of their own, and governing themselves by
their [31 U.S. 515, 543] own laws. It is difficult to comprehend the proposition, that the inhabitants of either quarter
of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they
occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered,
which annulled the pre- existing rights of its ancient possessors.
After lying concealed for a series of ages, the enterprise of Europe, guided by nautical science, conducted some of her
adventurous sons into this western world. They found it in possession of a people who had made small progress in
agriculture or manufactures, and whose general employment was war, hunting, and fishing.
Did these adventurers, by sailing along the coast, and occasionally landing on it, acquire for the several governments
to whom they belonged, or by whom they were commissioned, a rightful property in the soil, from the Atlantic to the
Pacific; or rightful dominion over the numerous people who occupied it? Or has nature, or the great Creator of all
things, conferred these rights over hunters and fishermen, on agriculturists and manufacturers?
But power, war, conquest, give rights, which, after possession, are conceded by the world; and which can never be
controverted by those on whom they descend. We proceed, then, to the actual state of things, having glanced at their
origin; because holding it in our recollection might shed some light on existing pretensions.
The great maritime powers of Europe discovered and visited different parts of this continent at nearly the same time.
The object was too immense for any one of them to grasp the whole; and the claimants were too powerful to submit
to the exclusive or unreasonable pretensions of any single potentate. To avoid bloody conflicts, which might
terminate disastrously to all, it was necessary for the nations of Europe to establish some principle which all would
acknowledge, and which should decide their respective rights as between themselves. This principle, suggested by
the actual state of things, was, 'that discovery gave title to the government by whose subjects or by whose authori ty it
was made, against all other European [31 U.S. 515, 544] governments, which title might be consummated by
possession.' 8 Wheat. 573.
This principle, acknowledged by all Europeans, because it was the interest of all to acknowledge it, gave to the na tion
making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on
it. It was an exclusive principle which shut out the right of competition among those who had agreed to it; not one
which could annul the previous rights of those who had not agreed to it. It regulated the right given by discovery
among the European discoverers; but could not affect the rights of those already in possession, either as aboriginal
occupants, or as occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to
purchase, but did not found that right on a denial of the right of the possessor to sell.
The relation between the Europeans and the natives was determined in each case by the particular government
which asserted and could maintain this pre-emptive privilege in the particular place. The United States succeeded to
all the claims of Great Britain, both territorial and political; but no attempt, so far as is known, has been made to
enlarge them. So far as they existed merely in theory, or were in their nature only exclusive of the claims of other
European nations, they still retain their original character, and remain dormant. So far as they have been practically
exerted, they exist in fact, are understood by both parties, are asserted by the one, and admitted by the other.
Soon after Great Britain determined on planting colonies in America, the king granted charters to companies of his
subjects who associated for the purpose of carrying the views of the crown into effect, and of enriching themselves.
The first of these charters was made before possession was taken of any part of the country. They purport, generally,
to convey the soil, from the Atlantic to the South Sea. This soil was oc cupied by numerous and warlike nations,
equally willing and able to defend their possessions. The extravagant and absurd idea, that the feeble settlements
made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern
the people, or occupy the lands from [31 U.S. 515, 545] sea to sea, did not enter the mind of any man. They were well
understood to convey the title which, according to the common law of European sovereigns respecting America, they
might rightfully convey, and no more. This was the exclusive right of purchasing such lands as the natives were
willing to sell. The crown could not be understood to grant what the crown did not affect to claim; nor was it so
understood.
The power of making war is conferred by these charters on the colonies, but defensive war alone seems to have been
contemplated. In the first charter to the first and second colonies, they are empowered, 'for their several defences, to
encounter, expulse, repel, and resist, all persons who shall, without license,' attempt to inhabit 'within the said
precincts and limits of the said several colonies, or that shall enterprise or attempt at any time hereafter the least
detriment or annoyance of the said several colonies or plantations.'
The charter to Connecticut concludes a general power to make defensive war with these terms: 'and upon just causes
to invade and destroy the natives or other enemies of the said colony.'
The same power, in the same words, is conferred on the government of Rhode Island.
This power to repel invasion, and, upon just cause, to invade and destroy the natives, authorizes offensive as well as
defensive war, but only 'on just cause.' The very terms imply the existence of a country to be invaded, and of an
enemy who has given just cause of war.
The charter to William Penn contains the following recital: 'and because, in so remote a country, near so many
barbarous nations, the incursions, as well of the savages themselves, as of other enemies, pirates, and robbers, may
probably be feared, therefore we have given,' &c. The instrument then confers the power of war.
These barbarous nations, whose incursions were feared, and to repel whose incursions the power to make war was
given, were surely not considered as the subjects of Penn, or occupying his lands during his pleasure.
The same clause is introduced into the charter to Lord Baltimore. [31 U.S. 515, 546] The charter to Georgia professes
to be granted for the charitable purpose of enabling poor subjects to gain a comfortable subsistence by cultivating
lands in the American provinces, 'at present waste and desolate.' It recites: 'and whereas our provinces in North
America have been frequently ravaged by Indian enemies, more especially that of South Carolina, which, in the late
war by the neighbouring savages, was laid waste by fire and sword, and great numbers of the English inhabitants
miserably massacred; and our loving subjects, who now inhabit there, by reason of the smallness of their numbers,
will, in case of any new war, be exposed to the like calamities, inasmuch as their whole southern frontier continueth
unsettled, and lieth open to the said savages.'
These motives for planting the new colony are incompatible with the lofty ideas of granting the soil, and all its
inhabitants from sea to sea. They demonstrate the truth, that these grants asserted a title against Europeans only,
and were considered as blank paper so far as the rights of the natives were concerned. The power of war is given only
for defence, not for conquest.
The charters contain passages showing one of their objects to be the civilization of the Indians, and their conversion
to Christianity-objects to be accomplished by conciliatory conduct and good example; not by extermination.
The actual state of things, and the practice of European nations, on so much of the American continent as lies
between the Mississippi and the Atlantic, explain their claims, and the charters they granted. Their pretensions
unavoidably interfered with each other; though the discovery of one was admitted by all to exclude the claim of any
other, the extent of that discovery was the subject of unceasing contest. Bloody conflicts arose between them, which
gave importance and security to the neighbouring nations. Fierce and warlike in their character, they might be
formidable enemies, or effective friends. Instead of rousing their resentments, by asserting claims to their lands, or
to dominion over their persons, their alliance was sought by flattering professions, and purchased by rich presents.
The English, the French, and the Spaniards, were equally competitors for their friendship and their aid. Not well
acquainted with the exact meaning of [31 U.S. 515, 547 ] words, nor supposing it to be material whether they were
called the subjects, or the children of their father in Europe; lavish in professions of duty and affection, in return for
the rich presents they received; so long as their actual independence was untouched, and their right to self
government acknowledged, they were willing to profess dependence on the power which furnished supplies of which
they were in absolute need, and restrained dangerous intruders from entering their country: and this was probably
the sense in which the term was understood by them.
Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the
part of the crown to interfere with the internal affairs of the Indians, farther than to keep out the agents of foreign
powers, who, as traders or otherwise, might seduce them into foreign alliances. The king purchased their when they
were willing to sell, at a price they were willing to take; but never coerced a surrender of them. He also purchased
their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with
their self government, so far as respected themselves only.
The general views of Great Britain, with regard to the Indians, were detailed by Mr Stuart, superintendent of Indian
affairs, in a speech delivered at Mobile, in presence of several persons of distinction, soon after the peace of 1763.
Towards the conclusion he says, 'lastly, I inform you that it is the king's order to all his governors and subjects, to
treat Indians with justice and humanity, and to forbear all encroachments on the territories allotted to them;
accordingly, all individuals are prohibited from purchasing any of your lands; but, as you know that, as your white
brethren cannot feed you when you visit them unless you give them ground to plant, it is expected that you will cede
lands to the king for that purpose. But, whenever you shall be pleased to surrender any of your territories to his
majesty, it must be done, for the future, at a public meeting of your nation, when the gov ernors of the provinces, or
the superintendent shall be present, and obtain the consent of all your people. The boundaries of your hunting
grounds will be accurately fixed, and no settlement permitted to be made upon them. As you may be assured that all
treaties [31 U.S. 515, 548] with your people will be faithfully kept, so it is expected that you, also, will be careful
strictly to observe them.'
The proclamation issued by the king of Great Britain, in 1763, soon after the ratification of the articles of peace,
forbids the governors of any of the colonies to grant warrants of survey, or pass patents upon any lands whatever,
which, not having been ceded to, or purchased by, us (the king), as aforesaid, are reserved to the said Indians, or any
of them.
The proclamation proceeds: 'and we do further declare it to be our royal will and pleasure, for the present, as
aforesaid, to reserve, under our sovereignty, protection, and dominion, for the use of the said Indians, all the lands
and territories lying to the westward of the sources of the rivers which fall into the sea, from the west and northwest
as aforesaid: and we do hereby strictly forbid, on pain of our displeasure, all our loving subjects from making any
purchases or settlements whatever, or taking possession of any of the lands above reserved, without our special leave
and license for that purpose first obtained.
'And we do further strictly enjoin and require all persons whatever, who have, either wilfully or
inadvertently, seated themselves upon any lands within the countries above described, or upon any other
lands which, not having been ceded to, or purchased by us, are still reserved to the said Indians, as aforesaid,
forthwith to remove themselves from such settlements.'
A proclamation, issued by Governor Gage, in 1772, contains the following passage: 'whereas many persons, contrary
to the positive orders of the king, upon this subject, have undertaken to make settlements beyond the boundaries
fixed by the treaties made with the Indian nations, w hich boundaries ought to serve as a barrier between the whites
and the said nations; particularly on the Ouabache.' The proclamation orders such persons to quit those countries
without delay.
Such was the policy of Great Britain towards the Indian nations inhabiting the territory from which she excluded all
other Europeans; such her claims, and such her practical exposition of the charters she had granted: she considered
them as nations capable of maintaining the relations of peace and war; of governing themselves, under her
protection; and she [31 U.S. 515, 549] made treaties with them, the obligation of which she acknowledged.
This was the settled state of things when the war of our revolution commenced. The influence of our enemy was
established; her resources enabled her to keep up that influence; and the colonists had much cause for the
apprehension that the Indian nations would, as the allies of Great Britain, add their arms to hers. This, as was to be
expected, became an object of great solicitude to congress. Far from advancing a claim to their lands, or asserting
any right of dominion over them, congress resolved 'that the securing and preserving the friendship of the Indian
nations appears to be a subject of the utmost moment to these colonies.'
The early journals of congress exhibit the most anxious desire to conciliate the Indian nations. Three Indian
departments were established; and commissioners appointed in each, 'to treat with the Indians in their respective
departments, in the name and on the behalf of the United Colonies, in order to preserve peace and friendship with
the said Indians, and to prevent their taking any part in the present commotions.'
The most strenuous exertions were made to procure those supplies on which Indian friendships were supposed to
depend; and every thing which might excite hostility was avoided.
The first treaty was made with the Delawares, in September 1778.
The language of equality in which it is drawn, evinces the temper with which the negotiation was under taken, and
the opinion which then prevailed in the United States.
'1. That all offences or acts of hostilities, by one or either of the contracting parties against the other, be
mutually forgiven, and buried in the depth of oblivion, never more to be had in remembrance.
'2. That a perpetual peace and friendship shall, from henceforth, take place and subsist between the
contracting parties aforesaid, through all succeeding generations: and if either of the parties are engaged in a
just and necessary war, with any other nation or nations, that then each shall assist the other, in due
proportion to their abilities, till their enemies are brought to reasonable terms of accommodation,' &c.
3. The third article stipulates, among other things, a free [31 U.S. 515, 550] passage for the American troops through
the Delaware nation; and engages that they shall be furnished with provisions and other necessaries at their value.
'4. For the better security of the peace and friendship now entered into by the contracting parties against all
infractions of the same by the citizens of either party, to the prejudice of the other, neither party shall
proceed to the infliction of punishments on the citizens of the other, otherwise than by securing the offender
or offenders, by imprisonment, or any other competent means, till a fair and impartial trial can be had by
judges or juries of both parties, as near as can be to the laws, customs and usages of the contracting parties,
and natural justice,' &c.
5. The fifth article regulates the trade between the contracting parties, in a manner entirely equal.
6. The sixth article is entitled to peculiar attention, as it contains a disclaimer of designs which were, at that time,
ascribed to the United States, by their enemies, and from the imputation of which congress was then peculiarly
anxious to free the government. It is in these words: 'Whereas the enemies of the United States have endeavoured,
by every artifice in their power, to possess the Indians in general with an opinion that it is the design of the states
aforesaid to extirpate the Indians, and take possession of their country: to obviate such false suggestion the United
States do engage to guaranty to the aforesaid nation of Delawares, and their heirs, all their territorial rights, in the
fullest and most ample manner, as it hath been bounded by former treaties, as long as the said Delaware nation shall
abide by, and hold fast the chain of friendship now entered into.'
The parties further agree, that other tribes, friendly to the interest of the United States, may be invited to form a
state, whereof the Delaware nation shall be the heads, and have a representation in congress.
This treaty, in its language, and in its provisions, is formed, as near as may be, on the model of treaties between the
crowned heads of Europe.
The sixth article shows how congress then treated the injurious calumny of cherishing designs unfriendly to the
political and civil rights of the Indians. [31 U.S. 515, 551] During the war of the revolution, the Cherokees took part
with the British. After its termination, the United States, though desirous of peace, did not feel its necessity so
strongly as while the war continued. Their political situation being changed, they might very well think it advisable
to assume a higher tone, and to impress on the Cherokees the same respect for congress which was before felt for the
king of Great Britain. This may account for the language of the treaty of Hopewe ll. There is the more reason for
supposing that the Cherokee chiefs were not very critical judges of the language, from the fact that every one makes
his mark; no chief was capable of signing his name. It is probable the treaty was interpreted to them.
The treaty is introduced with the declaration, that 'the commissioners plenipotentiary of the United States give
peace to all the Cherokees, and receive them into the favour and protection of the United States of America, on the
following conditions.'
When the United States gave peace, did they not also receive it? Were not both parties desirous of it? If we consult
the history of the day, does it not inform us that the United States were at least as anxious to obtain it as the
Cherokees? We may ask, further: did the Cherokees come to the seat of the American government to solicit peace;
or, did the American commissioners go to them to obtain it? The treaty was made at Hopewell, not at New York. The
word 'give,' then, has no real importance attached to it.
The first and second articles stipulate for the mutual restoration of prisoners, and are of course equal.
The third article acknowledges the Cherokees to be under the protection of the United States of America, and of no
other power.
This stipulation is found in Indian treaties, generally. It was introduced into their treaties with Great Britain; and
may probably be found in those with other European powers. Its origin may be traced to the nature of their
connexion with those powers; and its true meaning is discerned in their relative situation.
The general law of European sovereigns, respecting their claims in America, limited the intercourse of Indians, in a
[31 U.S. 515, 552] great degree, to the particular potentate whose ultimate right of domain was acknowledged by the
others. This was the general state of things in time of peace. It was sometimes changed in war. The consequence was,
that their supplies were derived chiefly from that nation, and their trade confined to it. Goods, indispensable to the ir
comfort, in the shape of presents, were received from the same hand. What was of still more importance, the strong
hand of government was interposed to restrain the disorderly and licentious from intrusions into their country, from
encroachments on their lands, and from those acts of violence which were often attended by reciprocal murder. The
Indians perceived in this protection only what was beneficial to themselves-an engagement to punish aggressions on
them. It involved, practically, no claim to their lands, no dominion over their persons. It merely bound the nation to
the British crown, as a dependent ally, claiming the protection of a powerful friend and neighbour, and receiving the
advantages of that protection, without involving a surrender of their national character.
This is the true meaning of the stipulation, and is undoubtedly the sense in which it was made. Neither the British
government, nor the Cherokees, ever understood it otherwise.
The same stipulation entered into with the United States, is undoubtedly to be construed in the same manner. They
receive the Cherokee nation into their favor and protection. The Cherokees acknowledge themselves to be under the
protection of the United States, and of no other power. Protection does not imply the destruction of the protected.
The manner in which this stipulation was understood by the American government, is explained by the language and
acts of our first president.
The fourth article draws the boundary between the Indians and the citizens of the United States. But, in describing
this boundary, the term 'allotted' and the term 'hunting ground' are used.
Is it reasonable to suppose, that the Indians, who could not write, and most probably could not read, who certainly
were not critical judges of our language, should distinguish the word 'allotted' from the words 'marked out.' The
actual subject of contract was the dividing line between the two nations, [31 U.S. 515, 553] and their attention may
very well be supposed to have been confined to that subject. When, in fact, they were ceding lands to the United
States, and describing the extent of their cession, it may very well be supposed that they might not understand the
term employed, as indicating that, instead of granting, they were receiving lands. If the term would admit of no other
signification, which is not conceded, its being misderstood is so apparent, results so necessarily from the whole
transaction; that it must, we think, be taken in the sense in which it was most obviously used.
So with respect to the words 'hunting grounds.' Hunting was at that time the principal occupation of the Indians,
and their land was more used for that purpose than for any other. It could not, however, be supposed, that any
intention existed of restricting the full use of the lands they reserved.
To the United States, it could be a matter of no concern, whether their whole territory was devoted to hunting
grounds, or whether an occasional village, and an occasional corn field, interrupted, and gave some variety to the
scene.
These terms had been used in their treaties with Great Britain, and had never been misunderstood. They had never
been supposed to imply a right in the British government to take their lands, or to interfere with their internal
government.
The fifth article withdraws the protection of the United States from any citizen who has settled, or shall settle, on the
lands allotted to the Indians, for their hunting grounds; and stipulates that, if he shall not remove within six months
the Indians may punish him.
The sixth and seventh articles stipulate for the punishment of the citizens of either country, who may commit
offences on or against the citizens of the other. The only inference to be drawn from them is, that the United States
considered the Cherokees as a nation.
The ninth article is in these words: 'for the benefit and comfort of the Indians, and for the prevention of injuries or
oppressions on the part of the citizens or Indians, the United States, in congress assembled, shall have the sole and
exclusive right of regulating the trade with the Indians, and managing all their affairs, as they think proper.'
To construe the expression 'managing all their affairs,' [31 U.S. 515, 554] into a surrender of self-government, would
be, we think, a perversion of their necessary meaning, and a departure from the construction which has been
uniformly put on them. The great subject of the article is the Indian trade. The influence it gave, made it desirable
that congress should possess it. The commissioners brought forward the claim, with the profession that their motive
was 'the benefit and comfort of the Indians, and the prevention of injuries or oppressions.' This may be true, as
respects the regulation of their trade, and as respects the regulation of all affairs connected with their trade, but
cannot be true, as respects the management of all their affairs. The most important of these, are the cession of their
lands, and security against intruders on them. Is it credible, that they should have considered themselves a
surrendering to the United States the right to dictate their future cessions, and the terms on which they should be
made? or to compel their submission to the violence of disorderly and licentious intruders? It is equally
inconceivable that they could have supposed themselves, by a phrase thus slipped into an article, on another and
most interesting subject, to have divested themselves of the right of self -government on subjects not connected with
trade. Such a measure could not be 'for their benefit and comfort,' or for 'the prevention of injuries and oppression.'
Such a construction would be inconsistent with the spirit of this and of all subsequent treaties; especially of those
articles which recognise the right of the Cherokees to declare hostilities, and to make war. It would convert a treaty
of peace covertly into an act, annihilating the political existence of one of the parties. Had such a result been
intended, it would have been openly avowed.
This treaty contains a few terms capable of being used in a sense which could not have been intended at the time,
and which is inconsistent with the practical construction which has always been put on them; but its essential
articles treat the Cherokees as a nation capable of maintaining the relations of peace and war; and ascertain the
boundaries between them and the United States.
The treaty of Hopewell seems not to have established a solid peace. To accommodate the differences still existing
between the state of Georgia and the Cherokee nation, the treaty of [31 U.S. 515, 555] Holston was negotiated in July
1791. The existing constitution of the United States had been then adopted, and the government, having more
intrinsic capacity to enforce its just claims, was perhaps less mindful of high sounding expressions, denoting
superiority. We hear no more of giving peace to the Cherokees. The mutual desire of establishing permanent peace
and friendship, and of removing all causes of war, is honestly avowed, and, in pursuance of this desire , the first
article declares, that there shall be perpetual peace and friendship between all the citizens of the United States of
America and all the individuals composing the Cherokee nation.
The second article repeats the important acknowledgement, that the Cherokee nation is under the protection of the
United States of America, and of no other sovereign whosoever.
The meaning of this has been already explained. The Indian nations were, from their situation, necessarily
dependent on some foreign potentate for the supply of their essential wants, and for their protection from lawless
and injurious intrusions into their country. That power was naturally termed their protector. They had been
arranged under the protection of Great Britain: but the extinguishment of the British power in their neighbourhood,
and the establishment of that of the United States in its place, led naturally to the declaration, on the part of the
Cherokees, that they were under the protection of the United States, and of no other power. They assumed the
relation with the United States, which had before subsisted with Great Britain.
This relation was that of a nation claiming and receiving the protection of one more powerful: not that of individuals
abandoning their national character, and submitting as subjects to the laws of a master.
The third article contains a perfectly equal stipulation for the surrender of prisoners.
The fourth article declares, that 'the boundary between the United States and the Cherokee nation shall be as
follows: beginning,' &c. We hear no more of 'allotments' or of 'hunting grounds.' A boundary is described, between
nation and nation, by mutual consent. The national character of each; the ability of each to establish this boundary,
is acknowledged by the other. To preclude for ever all disputes, it is agreed [31 U.S. 515, 556] that it shall be plainly
marked by commissioners, to be appointed by each party; and, in order to extinguish for ever all claim of the
Cherokees to the ceded lands, an additional consideration is to be paid by the United States. For this additional
consideration the Cherokees release all right to the ceded land, for ever.
By the fifth article, the Cherokees allow the United States a road through their country, and the navigation of the
Tennessee river. The acceptance of these cessions is an acknowledgement of the right of the Cherokees to make or
withhold them.
By the sixth article, it is agreed, on the part of the Cherokees, that the United States shall have the sole and exclusive
right of regulating their trade. No claim is made to the management of all their affairs. This stipulation has already
been explained. The observation may be repeated, that the stipulation is itself an admission of their right to make or
refuse it.
By the seventh article the United States solemnly guaranty to the Cherokee nation all their lands not hereby ceded.
The eighth article relinquishes to the Cherokees any citizens of the United States who may settle on their lands; and
the ninth forbids any citizen of the United States to hunt on their lands, or to enter their country without a passport.
The remaining articles are equal, and contain stipulations which could be made only with a nation admitted to be
capable of governing itself.
This treaty, thus explicitly recognizing the national character of the Cherokees, and their right of self government;
thus guarantying their lands; assuming the duty of protection, and of course pleding the faith of the United States
for that protection; has been frequently renewed, and is now in full force.
To the general pledge of protection have been added several specific pledges, deemed valuable by the Indians. Some
of these restrain the citizens of the United States from encroachments on the Cherokee country, and provide for the
punishment of intruders.
From the commencement of our government, congress has passed acts to regulate trade and intercourse with t he
Indians; which treat them as nations, respect their rights, and manifest [31 U.S. 515, 557 ] a firm purpose to afford
that protection which treaties stipulate. All these acts, and especially that of 1802, which is still in force, manifestly
consider the several Indian nations as distinct political communities, having territorial boundaries, within which
their authority is exclusive, and having a right to all the lands within those boundaries, which is not only
acknowledged, but guarantied by the United States.
In 1819, congress passed an act for promoting those humane designs of civilizing the neighbouring Indians, which
had long been cherished by the executive. It enacts, 'that, for the purpose of providing against the further decline
and final extinction of the Indian tribes adjoining to the frontier settlements of the United States, and for
introducing among them the habits and arts of civilization, the president of the United States shall be, and he is
hereby authorized, in every case where he shall judge improvement in the habits and condition of such Indians
practicable, and that the means of instruction can be introduced with their own consent, to employ capable persons,
of good moral character, to instruct them in the mode of agriculture suited to their situation; and for teaching their
children in reading, writing and arithmetic; and for performing such other duties as may be enjoined, according to
such instructions and rules as the president may give and prescribe for the regulation of their conduct in the
discharge of their duties.'
This act avowedly contemplates the preservation of the Indian nations as an object sought by the United States, and
proposes to effect this object by civilizing and converting them from hunters into agriculturists. T hough the
Cherokees had already made considerable progress in this improvement, it cannot be doubted that the general
words of the act comprehend them. Their advance in the 'habits and arts of civilization,' rather encouraged
perseverance in the laudable exertions still farther to meliorate their condition. This act furnishes strong additional
evidence of a settled purpose to fix the Indians in their country by giving them security at home.
The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the
states; and provide that all intercourse with them shall be carried on exclusively by the government of the union. [31
U.S. 515, 558] Is this the rightful exercise of power, or is it usurpation?
While these states were colonies, this power, in its utmost extent, was admitted to reside in the crown. When our
revolutionary struggle commenced, congress was composed of an assemblage of deputies acting under specific
powers granted by the legislatures, or conventions of the several colonies. It was a great popular movement, not
perfectly organized; nor were the respective powers of those who were entrusted with the management of affairs
accurately defined. The necessities of our situation produced a general conviction that those measures which
concerned all, must be transacted by a body in which the representatives of all were assembled, and which could
command the confidence of all: congress, therefore, was considered as invested with all the powers of war and peace,
and congress dissolved our connexion with the mother country, and declared these United Colonies to be
independent states. Without any written definition of powers, they employed diplomatic agents to represent the
United States at the several courts of Europe; offered to negotiate treaties with them, and did actually negotiate
treaties with France. From the same necessity, and on the same principles, congress assumed the management of
Indian affairs; first in the name of these United Colonies; and, afterwards, in the name of the United States. Early
attempts were made at negotiation, and to regulate trade with them. These not proving successful, war was carried
on under the direction, and with the forces of the United States, and the efforts t o make peace, by treaty, were
earnest and incessant. The confederation found congress in the exercise of the same powers of peace and war, in our
relations with Indian nations, as will those of Europe.
Such was the state of things when the confederation was adopted. That instrument surrendered the powers of peace
and war to congress, and prohibited them to the states, respectively, unless a state be actually invaded, 'or shall have
received certain advice of a resolution being formed by some nation of Indians to invade such state, and the danger
is so imminent as not to admit of delay till the United States in congress assembled can be consulted.' This
instrument also gave the United States in congress assembled the sole and exclusive right of 'regulating t he trade
and managing all the affairs with the Indians, not [31 U.S. 515, 559] members of any of the states: provided, that the
legislative power of any state within its own limits be not infringed or violated.'
The ambiguous phrases which follow the grant of power to the United States, were so construed by the states of
North Carolina and Georgia as to annul the power itself. The discontents and confusion resulting from these
conflicting claims, produced representations to congress, which were referred to a committee, who made their report
in 1787. The report does not assent to the construction of the two states, but recommends an accommodation, by
liberal cessions of territory, or by an admission, on their part, of the powers claimed by congress. The co rrect
exposition of this article is rendered unnecessary by the adoption of our existing constitution. That instrument
confers on congress the powers of war and peace; of making treaties, and of regulating commerce with foreign
nations, and among the several states, and with the Indian tribes. These powers comprehend all that is required for
the regulation of our intercourse with the Indiana. They are not limited by any restrictions on their free actions. The
shackles imposed on this power, in the confederation, are discarded.
The Indian nations had always been considered as distinct, independent political communities, retaining their
original natural rights, as the undisputed possessors of the soil, from time immemorial, with the single exception of
that imposed by irresistible power, which excluded them from intercourse with any other European potentate than
the first discoverer of the coast of the particular region claimed: and this was a restriction which those European
potentates imposed on themselves, as well as on the Indians. The very term 'nation,' so generally applied to them,
means 'a people distinct from others.' The constitution, by declaring treaties already made, as well as those to be
made, to be the supreme law of the land, has adopted and sa nctioned the previous treaties with the Indian nations,
and consequently admits their rank among those powers who are capable of making treaties. The words 'treaty' and
'nation' are words of our own language, selected in our diplomatic and legislative proc eedings, by ourselves, having
each a definite and well understood meaning. We [31 U.S. 515, 560] have applied them to Indians, as we have
applied them to the other nations of the earth. They are applied to all in the same sense.
Georgia, herself, has furnished conclusive evidence that her former opinions on this subject concurred with those
entertained by her sister states, and by the government of the United States. Various acts of her legislature have been
cited in the argument, including the contract of cession made in the year 1802, all tending to prove her acquiescence
in the universal conviction that the Indian nations possessed a full right to the lands they occupied, until that right
should be extinguished by the United States, with their consent: that their territory was separated from that of any
state within whose chartered limits they might reside, by a boundary line, established by treaties: that, within their
boundary, they possessed rights with which no state could interfere: and that the whole power of regulating the
intercourse with them, was vested in the United States. A review of these acts, on the part of Georgia, would occupy
too much time, and is the less necessary, because they have been accurately detailed in the argument at the bar . Her
new series of laws, manifesting her abandonment of these opinions, appears to have commenced in December 1828.
In opposition to this original right, possessed by the undisputed occupants of every country; to this recognition of
that right, which is evidenced by our history, in every change through which we have passed; is placed the charters
granted by the monarch of a distant and distinct region, parcelling out a territory in possession of others whom he
could not remove and did not attempt to remov e, and the cession made of his claims by the treaty of peace.
The actual state of things at the time, and all history since, explain these charters; and the king of Great Britain, at
the treaty of peace, could cede only what belonged to his crown. These newly asserted titles can derive no aid from
the articles so often repeated in Indian treaties; extending to them, first, the protection of Great Britain, and
afterwards that of the United States. These articles are associated with others, recognizing their title to self
government. The very fact of repeated treaties with them recognizes it; and the settled [31 U.S. 515, 561] doctrine of
the law of nations is, that a weaker power does not surrender its independence-its right to self government, by
associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself
under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a
state. Examples of this kind are not wanting in Europe. 'Tributary and feudatory states,' says Vattel, 'do not thereby
cease to be sovereign and independent states, so long as self government and sovereign and independent authority
are left in the administration of the state.' At the present day, more than one state may be considered as holding its
right of self government under the guarantee and protection of one or more allies.
The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accura tely
described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter,
but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The
whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the
government of the United States.
The act of the state of Georgia, under which the plaintiff in error was prosecuted, is consequently void, and the
judgment a nullity. Can this court revise, and reverse it?
If the objection to the system of legislation, lately adopted by the legislature of Georgia, in relation to the Cherokee
nation, was confined to its extra-territorial operation, the objection, though complete, so far as respected mere right,
would give this court no power over the subject. But it goes much further. If the review which has been taken be
correct, and we think it is, the acts of Georgia are repugnant to the constitution, laws, and treaties of the Unit ed
States.
They interfere forcibly with the relations established between the United States and the Cherokee nation, the
regulation of which, according to the settled principles of our constitution, are committed exclusively to the
government of the union.
They are in direct hostility with treaties, repeated in a succession of years, which mark out the boundary that
separates [31 U.S. 515, 562] the Cherokee country from Georgia; guaranty to them all the land within their
boundary; solemnly pledge the faith of the United States to restrain their citizens from trespassing on it; and
recognize the pre-existing power of the nation to govern itself.
They are in equal hostility with the acts of congress for regulating this intercourse, and giving effect to the treaties.
The forcible seizure and abduction of the plaintiff in error, who was residing in the nation with its permission, any
by authority of the president of the United States, is also a violation of the acts which authorise the chief magistrate
to exercise this authority.
Will these powerful considerations avail the plaintiff in error? We think they will. He was seized, and forcibly carried
away, while under guardianship of treaties guarantying the country in which he resided, and taking it under th e
protection of the United States. He was seized while performing, under the sanction of the chief magistrate of the
union, those duties which the humane policy adopted by congress had recommended. He was apprehended, tried,
and condemned, under colour of a law which has been shown to the repugnant to the constitution, laws, and treaties
of the United States. Had a judgment, liable to the same objections, been rendered for property, none would
question the jurisdiction of this court. It cannot be less clear when the judgment affects personal liberty, and inflicts
disgraceful punishment, if punishment could disgrace when inflicted on innocence. The plaintiff in error is not less
interested in the operation of this unconstitutional law than if it affected his property. He is not less entitled to the
protection of the constitution, laws, and treaties of his country.
This point has been elaborately argued and, after deliberate consideration, decided, in the case of Cohens v. The
Commonwealth of Virginia, 6 Wheat. 264.
It is the opinion of this court that the judgment of the superior court for the county of Gwinnett, in the state of
Georgia, condemning Samuel A. Worcester to hard labour, in the penitentiary of the state of Georgia, for four years,
was pronounced by that court under colour of a law which is void, as being repugnant to the constitution, treaties,
and laws of the [31 U.S. 515, 563] United States, and ought, therefore, to be reversed and annulled.
Mr Justice M'LEAN.
As this case involves principles of the highest importance, and may lead to consequences which shall have an
enduring influence on the institutions of this country; and as there are some points in the case on which I wish to
state, distinctly, my opinion, I embrace the privilege of doing so.
With the decision, just given, I concur.
The plaintiff in error was indicted under a law of Georgia, 'for residing in that part of the Cherokee nation attached,
by the laws of said state, to the county of Gwinnett, without a license or permit from his excellency the governor of
the state, or from any agent authorised by his excellency the governor to grant such permit or license, and without
having taken the oath to support and defend the constitution and laws of the state of Georgia, and uprightly to
demean himself as a citizen thereof.'
On this indictment the defendant was arrested, and, on being arraigned before the superior court for Gwinnett
county, he filed, in substance, the following plea:
He admits that, on the 15th of July 1831, he was, and still continued to be, a resident in the Cherokee nation, and
that the crime, if any were committed, was committed at the town of New Echota, in said nation, out of the
jurisdiction of the court. That he is a citizen of Vermont, and that he entered the Indian country in the capacity of a
duly authorised missionary of the American Board of Commissioners for Foreign Missions, under the authority of
the president of the United States, and has not since been required by him to leave it. That he was, at the time of his
arrest, engaged in preaching the gospel to the Cherokee Indians, and in translating the sacred Scriptures into their
language, with the permission and approval of the Cherokee nation, and in accordance with the humane policy of the
government of the United States, for the improvement of the Indians.
He then states, as a bar to the prosecution, certain treaties made between the United States and the Cherokee
Indians, by [31 U.S. 515, 564] which the possession of the territory they now inhabit was solemnly guarantied to
them; and also a certain act of congress, passed in March 1802, entitled 'an act to regulate trade and intercourse with
the Indian tribes.' He also alleges, that this subject, by the constitution of the United States, is exclusively vested in
congress; and that the law of Georgia, being repugnant to the constitution of the United States, to the treaties
referred to, and to the act of congress specified, is void, and cannot be enforced against him.
This plea was overruled by the court, and the defendant pleaded not guilty.
The jury returned a verdict of guilty; and the defendant was sentenced, by the court, to be kept in close custody, by
the sheriff of the county, until he could be transported to the penitentiary of the state, and the keeper thereof was
directed to receive him into custody, and keep him at hard labour in the penitentiary, during the term of four years.
Another individual was included in the same indictment, and joined in the plea to the jurisdiction of the court, and
was also included in the sentence; but his name is not adverted to, because the principles of the case are fully
presented in the above statement.
To reverse this judgment, a writ of error was obtained, which, having been returned, with the record of the
proceedings, is now before this court.
The first question which it becomes necessary to examine, is, whether the record has been duly certified, so as to
bring the proceedings regularly before this tribunal.
A writ of error was allowed, in this case, by one of the justices of this court, and the requisite security taken. A
citation was also issued, in the form prescribed, to the state of Georgia, a true copy of which, as app ears by the oath
of William Patten, was delivered to the governor, on the 24th day of November last; and another true copy was
delivered, on the 22d day of the same month, to the attorney -general of the state.
The record was returned by the clerk, under the seal of the court, who certifies that it is a full and complete
exemplification of the proceedings and judgment had in the case; and he [31 U.S. 515, 565] further certifies, that the
original bond, and a copy of the writ of error, were duly deposited and filed in the clerk's office of said court, on the
10th day of November last.
Is it necessary, in such a case, that the record should be certified by the judge who held the court?
In the case of Martin v. Hunter's Lessee, which was a writ of error to the court of appeals of Virginia, it was objected
that the return to the writ of error was defective, because the record was not so certified; but the court, in that case,
said, 'the forms of process, and the modes of proceeding in the exercise of jurisdic tion, are, with few exceptions, left
by the legislature to be regulated and changed as this court may, in its discretion, deem expedient.' By a rule of this
court, 'the return of a copy of a record of the proper court, annexed to the writ of error, is decl ared to be a sufficient
compliance with the mandate of the writ. The record, in this case, is duly certified by the clerk of the court of
appeals, and annexed to the writ of error. The objection, therefore, which has been urged to the sufficiency of the
return, cannot prevail.'-1 Wheat. 304.
In 9 Wheat. 526, in the case of Stewart v. Ingle and others, which was a writ of error to the circuit court for the
district of Columbia, a certiorari was issued, upon a suggestion of diminution in the record, which was returned by
the clerk with another record; whereupon, a motion was made for a new certiorari, on the ground that the return
ought to have been made by the judge of the court below, and not by the clerk. The writ of certiorari, it is known, like
the writ of error, is directed to the court.
Mr Justice Washington, after consultation with the judges, stated that, according to the rules and practice of the
court, a return made by the clerk was a sufficient return.
To ascertain what has been the general course of practice on this subject, an examination has been made into the
manner in which records have been certified from state courts to this court; and it appears that, in the year 1817, six
causes were certified, in obedience to writs of error, by the clerk , under the seal of the court. In the year 1819, two
were so certified, one of them being the case of M'Cullough v. The State of Maryland. [31 U.S. 515, 566] In the year
1821, three cases were so certified; and in the year 1823, there was one. In 1827, there were five, and in the ensuing
year, seven.
In the year 1830, there were eight causes so certified, in five of which, a state was a party on the record. There were
three causes thus certified in the year 1831, and five in the present year.
During the above periods, there were only fifteen causes from state courts, where the records were certified by the
court or the presiding judge, and one of these was the case of Cohens v. The State of Virginia.
This court adopted the following rule on this subject in 1797:
'It is ordered by the court, that the clerk of the court to which any writ of error shall be directed, may make
the return of the same, by transmitting a true copy of the record, and of all proceedings in the cause, under
his hand, and the seal of the court.'
The power of the court to adopt this rule, cannot be questioned: and it seems to have regulated the practice ever
since its adoption. In some cases, the certificate of the court, or the presiding judge, has been affixed to the record;
but this court has decided, where the question has been raised, that such certificate is unnecessary.
So far as the authentication of the record is concerned, it is impossible to make a distinction between a civil and a
criminal case. What may be sufficient to authenticate the proceedings in a civil case, must be equally so in a criminal
one. The verity of the record is of as much importance in the one case as the other.
This is a question of practice; and it would seem that, if any one point in the practice of this court can be considered
as settled, this one must be so considered.
In the progress of the investigation, the next inquiry which seems naturally to arise, is whether this is a case in which
a writ of error may be issued.
By the twenty-fifth section of the judiciary act of 1789, it is provided, 'that a final judgment or decree in any suit in
the highest court of law or equity of a state, in which a decision in the suit could be had, where is drawn in question
the [31 U.S. 515, 567 ] validity of a treaty, or statute of, or an authority exercised under, the United States, and the
decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised
under, any state, on the ground of their being repugnant to the constitution, treaties, or laws, of the United States,
and the decision is in favour of such their validity; or where is drawn in question the construction of any clause of
the constitution, or of a treaty or statute of, or commission held under, the United States, and the decision is against
the title, right, privilege, or exemption, specially set up or claimed by either party, under such clause of the said
constitution, treaty, statute, or commission, may be re-examined, and reversed or affirmed, in the supreme court of
the United States.'
Doubts have been expressed whether a writ of error to a state court is not limited to civil cases. These doubts could
not have arisen from reading the above section. Is not a criminal case, as much a suit as a civil case. What is a suit,
but a prosecution; and can any one suppose that it was the intention of congress, in using the word suit, to make a
distinction between a civil prosecution and a criminal one.
It is more important that jurisdiction should be given to this court in criminal than in civil cases, under the twenty fifth section of the judiciary act. Would it not be inconsistent, both with the spirit and letter of this law, to revise the
judgment of a state court, in a matter of controversy respecting damages, where the decision is against a right
asserted under the constitution or a law of the United States; but to deny the jurisdiction, in a case where the
property, the character, the liberty and life of a citizen may be destroyed, though protected by the solemn guarantees
of the constitution?
But this is not an open question; it has long since been settled by the solemn adjudications of this court. The above
construction, therefore, is sustained both on principle and authority. The provisions of the section apply as well to
criminal as to civil cases, where the constitution, treaties, or laws of the United States come in conflict with the laws
of a state; and the latter is sustained by the decision of the court.
It has been said, this this court can have no power to arrest [31 U.S. 515, 568] the proceedings of a state tribunal in
the enforcement of the criminal laws of the state. This is undoubtedly true, so long as a state court, in the execution
of its penal laws, shall not infringe upon the constitution of the United States, or some treaty or law of the union.
Suppose a state should make it penal for an officer of the United States to discharge his duties within its jurisdiction;
as, for instance, a land officer, an officer of the customs, or a postmaster, and punish the offender by confinement in
the penitentiary: could not the supreme court of the United States interpose their power, and arrest or reverse the
state proceedings? Cases of this kind are so palpable, that they need only to be stated to gain the assent of every
judicious mind. And would not this be an interference with the administration of the criminal laws of a state?
This court have repeatedly decided, that they have no appellate jurisdiction in criminal cases from the circuit courts
of the United States: writs of error and appeals are given from those courts only in civil cases. But, even in those
courts, where the judges are divided on any point, in a criminal case, the point may be brought before this court,
under a general provision in cases of division of opinion.
Jurisdiction is taken in the case under consideration exclusively by the provisions of the twenty -fifth section of the
law which has been quoted. These provisions, as has been remarked, apply, indiscriminately, to criminal and civil
cases, wherever a right is claimed under the constitution, treaties, or laws of the United States, and the decision, by
the state court, is against such right. In the present case, the decision was against the right expressly set up by the
defendant, and it was made by the highest judicial tribunal of Georgia.
To give jurisdiction in such a case, this court need look no further than to ascertain whether the right, thus asserted,
was decided against by the state court. The case is clear of difficulty on this point.
The name of the state of Georgia is used in this case, because suc h was the designation given to the cause in the state
court. No one ever supposed, that the state, in its sovereign capacity, in such a case, is a party to the cause. The form
of [31 U.S. 515, 569] the prosecution here must be the same as it was in the state court; but so far as the name of the
state is used, it is matter of form. Under a rule of this court, notice was given to the governor and attorney -general of
the state, because it is a part of their duty to see that the laws of the state are executed.
In prosecutions for violations of the penal laws of the union, the name of the United States is used in the same
manner. Whethet the prosecution be under a federal or state law, the defendant has a right to question the
constitutionality of the law.
Can any doubt exist as to the power of congress to pass the law, under which jurisdiction is taken in this case? Since
its passage, in 1789, it has been the law of the land; and has been sanctioned by an uninterrupted course of decisions
in this court, and acquiesced in by the state tribunals, with perhaps a solitary exception: and whenever the attention
of the national legislature has been called to the subject, their sanction has been given to the law by so large a
majority as to approach almost to unanimity.
Of the policy of this act there can be as little doubt as of the right of congress to pass it.
The constitution of the United States was formed, not, in my opinion, as some have contended, by the people of the
United States, nor, as others, by the states; but by a combined power, exercised by the people, through their
delegates, limited in their sanctions, to the respective states.
Had the constitution emanated from the people, and the states had been referred to, merely as convenient districts,
by which the public expression could be ascertained, the popular vote throughout the union would have been the
only rule for the adoption of the constitution. This course was not pursued; and in this fact, it clearly appears that
our fundamental law was not formed, exclusively, by the popular suffrage of the people.
The vote of the people was limited to the respective states in which they resided. So that it appears there was an
expression of popular suffrage and state sanction, most happily united, in the adoption of the constitution of the
union.
Whatever differences of opinion may exist, as to the means [31 U.S. 515, 57 0] by which the constitution was adopted,
there would seem to be no ground for any difference as to certain powers conferred by it.
Three co-ordinate branches of the government were established; the executive, legislative, and judicial. These
branches are essential to the existence of any free government, and that they should possess powers, in their
respective spheres, co-extensive with each other.
If the executive have not powers which will enable him to execute the functions of his office, the system is essentially
defective; as those duties must, in such case, be discharged by one of the other branches. This would destroy that
balance which is admitted to be essential to the existence of free government, by the wisest and most enlightened
statesmen of the present day.
It is not less important that the legislative power should be exercised by the appropriate branch of the government,
than that the executive duties should devolve upon the proper functionary. And if the judicial power fall short of
giving effect to the laws of the union, the existence of the federal government is at an end.
It is in vain, and worse than in vain, that the national legislature enact laws, if those laws are to remain upon the
statute book as monuments of the imbecility of the national power. It is in vain that the executive is called to
superintend the execution of the laws, if he have no power to aid in their enforcement.
Such weakness and folly are, in no degree, chargeable to the distinguished men through whose instrumentality the
constitution was formed. The powers given, it is true, are limited; and no powers, which are not expressly given, can
be exercised by the federal government: but, where given, they are supreme. Within the sphere allotted to them, the
co- ordinate branches of the general government revolve, unobstructed by any legitimate exercise of power by the
state governments. The powers exclusiv ely given to the federal government are limitations upon the state
authorities. But, with the exception of these limitations, the states are supreme; and their sovereignty can be no
more invaded by the action of the general government, than the action of the state governments in arrest or obstruct
the course of the national power. [31 U.S. 515, 57 1] It has been asserted that the federal government is foreign to the
state governments; and that it must consequently be hostile to them. Such an opinion could not have resulted from a
thorough investigation of the great principles which lie at the foundation of our system. The federal government is
neither foreign to the state governments, nor is it hostile to them. It proceeds from the same people, and is as mu ch
under their control as the state governments.
Where, by the constitution, the power of legislation is exclusively vested in congress, they legislature for the people
of the union, and their acts are as binding as are the constitutional enactments of a state legislature on the people of
the state. If this were not so, the federal government would exist only in name. Instead of being the proudest
mounment of human wisdom and patriotism, it would be the frail memorial of the ignorance and mental imbecility
of its framers.
In the discharge of his constitutional duties, the federal executive acts upon the people of the union, the same as a
governor of a state, in the performance of his duties, acts upon the people of the state. And the judicial power of the
United States acts in the same manner on the people. It rests upon the same basis as the other departments of the
government. The powers of each are derived from the same source, and are conferred by the same instrument. They
have the same limitations and extent.
The supreme court of a state, when required to give effect to a statute of the state, will examine its constitution,
which they are sworn to maintain, to see if the legislative act be repugnant to it; and if a repugnancy exist, the statute
must yield to the paramount law.
The same principle governs the supreme tribunal of the union. No one can deny, that the constitution of the United
States is the supreme law of the land; and consequently, no act of any state legislature, or of congress, which is
repugnant to it, can be of any validity.
Now if an act of a state legislature be repugnant to the constitution of the state, the state court will declare it void;
and if such act be repugnant to the constitution of the union, or a law made under that constitution, which is
declared to be the supreme law of the land, is it not equally void? And, under [31 U.S. 515, 57 2] such circumstances,
if this court should shrink from a discharge of their duty, in giving effect to the supreme law of the land, would they
not violate their oaths, prove traitors to the constitution, and forfeit all just claim to the public confidence?
It is sometimes objected, if the federal judiciary may declare an act of a state legislature void, because it is repugnant
to the constitution of the United States, it places the legislation of a state within the power of this court. And might
not the same argument be urged with equal force against the exercise of a similar power, by the supreme court of a
state. Such an argument must end in the destruction of all constitutions, and the will of the legislature, like the acts
of the parliament of Great Britain, must be the supreme, and only law of the land.
It is impossible to guard an investiture of power so that it may not, in some form, be abused: an argument, therefore,
against the exercise of power, because it is liable to abuse, would go to the destruction of all governments.
The powers of this court are expressly, not constructively, given by the constitution; and within this delegation of
power, this court are the supreme court of the people of the United States, and they are bound to discharge their
duties, under the same responsibilities as the supreme court of a state; and are equally, within their powers, the
supreme court of the people of each state.
When this court are required to enforce the laws of any state, they are governed by those laws. So closely do they
adhere to this rule, that during the present term, a judgment of a circuit court of the United States, made in
pursuance of decisions of this court, has been reversed and annulled, because it did not conform to the decisions of
the state court, in giving a construction to a local law. But while this court conforms its decisions to those of the state
courts, on all questions arising under the statutes and constitutions of the respective states, they are bound to revise
and correct those decisions, if they annul, either the constitution of the United States, or the laws made under it.
It appears, then, that on all questions arising under the laws of a state, the decisions of the courts of such state form
a rule for the decisions of this court, and that on all questions arising under the laws of the United States, the
decisions of this court [31 U.S. 515, 57 3] form a rule for the decisions of the state courts. Is there any thing
unreasonable in this? Have not the federal, as well as the state courts, been constituted by the people? Why then
should one tribunal more than the other, be deemed hostile to the interests of the people.
In the second section of the third article of the constitution, it is declared, that 'the judicial power shall extend to all
cases, in law and equity, arising under the constitution, the laws of the United States, and treaties made, or which
shall be made, under their authority.
Having shown that a writ of error will lie in this case, and that the record has been duly certified, the next inquiry
that arises is, what are the acts of the United States which relate to the Cherokee Indians and the acts of Georgia;
and were these acts of the United States sanctioned by the federal constitution?
Among the enumerated powers of congress, contained in the eighth section of the first article of the constitution, it is
declared 'that congress shall have power to regulate commerce with foreign nations, and among the Indian tribes.'
By the articles of confederation, which were adopted on the 9th day of July 1778, it was provided 'that the United
States, in congress assembled, shall also have the sole and exclusive right and power of regulating the alloy and value
of coin struck, by their own authority, or by that of the respective states; fixing the standard of weight and measures
throughout the United States; regulating the trade and management of all affairs with the Indians, not members of
any of the states: Provided, that the legislative right of any state, within its own limits, be not infringed or violated.'
As early as June 1775, and before the adoption of the articles of confederation, congress took into their cons ideration
the subject of Indian affairs. The Indian country was divided into three departments, and the superintendence of
each was committed to commissioners, who were authorised to hold treaties with the Indians, make disbursements
of money for their use, and to discharge various duties, designed to preserve peace and cultivate a friendly feeling
with them towards the colonies. No person was permitted to trade with them [31 U.S. 515, 57 4] without a license
from one or more of the commissioners of the respective departments.
In April 1776, it was 'resolved, that the commissioners of Indian affairs in the middle department, or any one of
them, be desired to employ, for reasonable salaries, a minister of the gospel, to reside among the Delaware Indians,
and instruct them in the Christian religion; a school master, to teach their youth reading, writing, and arithmetic;
also, a blacksmith, to do the work of the Indians.' The general intercourse with the Indians continued to be managed
under the superintendence of the continental congress.
On the 28th of November 1785, the treaty of Hopewell was formed, which was the first treaty made with the
Cherokee Indians. The commissioners of the United States were required to give notice to the executives of Virginia,
North Carolina, South Carolina and Georgia, in order that each might appoint one or more persons to attend the
treaty, but they seem to have had no power to act on the occasion.
In this treaty it is stipulated, that 'the commissioners plenipotentiary of the United States in congress assembled,
give peace to all the Cherokees, and receive them into the favour and protection of the United States of America, on
the following conditions:'
1. The Cherokees to restore all prisoners and property taken during the war.
2. The United States to restore to the Cherokees all prisoners.
3. The Cherokees acknowledge themselves to be under the protection of the United States, and of no other sovereign
whatsoever.
4. The boundary line between the Cherokees and the citizens of the United States was agreed to as designated.
5. If any person, not being an Indian, intrude upon the land 'allotted' to the Indians, or, being settled on it, shall
refuse to remove within six months after the ratification of the treaty, he forfeits the protection of the United States,
and the Indians were at liberty to punish him as they might think proper.
6. The Indians are bound to deliver up to the United States any Indian who shall commit robbery, or other capital
crime, on a white person living within their protection. [31 U.S. 515, 57 5] 7. If the same offence be committed on an
Indian by a citizen of the United States, he is to be punished.
8. It is understood that the punishment of the innocent, under the idea of retaliation, is unjust, and shall not be
practised on either side, except where there is a manifest violation of this treaty; and then it shall be preceded, first,
by a demand of justice; and, if refused, then by a declaration of hostilities.
'That the Indians may have full confidence in the justice of the United States respecting their interests, they
shall have a right to send a deputy of their choice, whenever they think fit, to congress.'
The treaty of Holston was entered into with the same people, on the 2d day of July 1791.
This was a treaty of peace, in which the Cherokees again placed themselves under the protection of the United
States, and engaged to hold no treaty with any foreign power, individual state, or with individuals of any state.
Prisoners were agreed to be delivered up on both sides; a new Indian boundary was fixed; and a cession of land
made to the United States on the payment of a stipulated consideration.
A free, unmolested road, was agreed to be given through the Indian lands, and the free navigation of the Tennessee
river. It was agreed that the United States should have the exclusive right of regulating their trade, and a solemn
guarantee of their land, not ceded, was made. A similar provision was made, as to the punishment of offenders, and
as to all persons who might enter the Indian territory, as was contained in the treaty of Hopewell. Also, that reprisal
or retaliation shall not be committed, until satisfaction shall have been demanded of the aggressor.
On the 7th day of August 1786, an ordinance for the regulation of Indian affairs was adopted, which repealed the
former system.
In 1794 another treaty was made with the Cherokees, the object of which was to carry into effect the treaty of
Holston. And on the plains of Tellico, on the 2d the October 1798, the Cherokees, in another treaty, agreed to give a
right of way, in a certain direction, over their lands. Other engagements were also entered into, which need not be
referred to.
Various other treaties were made by the United States with [31 U.S. 515, 57 6] the Cherokee Indians, by which,
among other arrangements, cessions of territory were procured and boundaries agreed on.
In a treaty made in 1817, a distinct wish is expressed by the Cherokees, to assume a more regular form of
government, in which they are encouraged by the United States. By a treaty held at Washington, on the 27th day of
February 1819, a reservation of land is made by the Cherokees for a school fund, which was to be surveyed and sold
by the United States for that purpose. And it was agreed, that all white persons, who had intruded on the Indian
lands, should be removed.
To give effect to various treaties with this people, the power of the executive has frequently been exercised; and at
one time General Washington expressed a firm determination to resort to military force to remove intruders from
the Indian territories.
On the 30th of March 1802, congress passed an act to regulate trade and intercourse with the Indian tribes, and to
preserve peace on the frontiers.
In this act it is provided, that any citizen or resident in the United States, who shall enter into the Indian lands to
hunt, or for any other purpose, without a license, shall be subject to a fine and imprisonment. And if any person shall
attempt to survey, or actually survey, the Indian lands, he shall be liable to forfeit a sum not exceeding one thousand
dollars, and be imprisoned not exceeding twelve months. No person is permitted to reside as a trader within the
Indian boundaries, without a license or permit. All persons are prohibited, under a heavy penalty, from purchasing
the Indian lands; and all such purchases are declared to be void. And it is made lawful for the military force of the
United States to arrest offenders against the provisions of the act.
By the seventeenth section, it is provided, that the act shall not be so construed as to 'prevent any trade or
intercourse with Indians living on lands surrounded by settlements of the citizens of the United States, and being
within the ordinary jurisdiction of any of the individual states; or the unmolested use of a road, from Washington
district to Mero district, or to prevent the citizens of Tennessee from keeping in repair said road.' Nor was the act to
be so construed as to prevent persons from travelling from Knoxville to Price's settlement, [31 U.S. 515, 577 ]
provided they shall travel in the tract or path which is usually travelled, and the Indians do not object; but if they
object, then all travel on this road to be prohibited, after proclamation by the president, under the penalties provided
in the act.
Several acts, having the same object in view, were passed prior to this one; but as they were repeale d either before,
or by the act of 1802, their provisions need not be specially noticed.
The acts of the state of Georgia, which the plaintiff in error complains of, as being repugnant to the constitution,
treaties, and laws of the United States, are found in two statutes.
The first act was passed the 12th of December 1829; and is entitled 'an act to add the territory lying within the
chartered limits of Georgia, and now in the occupancy of the Cherokee Indians, to the counties of Carroll, Dekalb,
Gwinnett and Habersham; and to extend the laws of the state over the same, and to annul all laws made by the
Cherokee nation of Indians, and to provide for the compensation of officers serving legal process in said territory,
and to regulate the testimony of Indians, and to repeal the ninth section of the act of 1828 on this subject.'
This act annexes the territory of the Indians, within the limits of Georgia, to the counties named in the title; and
extends the jurisdiction of the state over it. It annuls the laws, ordinances, orders and regulations, of any kind, made
by the Cherokees, either in council or in any other way, and they are not permitted to be given in evidence in the
courts of the state. By this law, no Indian, or the descendant of an Indian, residing within the Creek or Cherokee
nation of Indians, shall be deemed a competent witness in any court of the state, to which a white person may be a
party, except such white person reside within the nation. Offences under the act are to be punished by confinement
in the penitentiary, in some cases not less than four nor more than six years, and in others not exceeding four years.
The second act was passed on the 22d day of December 1830, and is entitled 'an act to prevent the exercise of
assumed and arbitrary power, by all persons, on pretext of authority from the Cherokee Indians and their laws; and
to prevent white persons from residing within that part of the [31 U.S. 515, 57 8] chartered limits of Georgia,
occupied by the Cherokee Indians; and to provide a guard for the protection of the gold mines, and to enforce the
laws of the state within the aforesaid territory.'
By the first section of this act, it is made a penitentiary offence, after the 1st day of February 1831, for any person or
persons, under colour or pretence of authority from the said Cherokee tribe, or as headmen, chiefs or warriors of
said tribe, to cause or procure, by any means, the assembling of any council or other pretended legislative body of
the said Indians, for the purpose of legislating, &c.
They are prohibited from making laws, holding courts of justice, or executing process. And all white persons, after
the 1st of March 1831, who shall reside within the limits of the Cherokee nation, without a license or permit from his
excellency the governor, or from such agent as his excellency the governor shall authorize to grant such permit or
license, or who shall not have taken the oath hereinafter required, shall be guilty of a high misdemeanour; and, upon
conviction thereof, shall be punished by confinement to the penitentiary at hard labour, for a term not less than four
years. From this punishment, agents of the United States are excepted, white females, and male children under
twenty-one years of age.
Persons who have obtained license, are required to take the following oath: 'I, A. B., do solemnly swear, that I will
support and defend the constitution and laws of the state of Georgia, and uprightly demean myself as a citizen
thereof. So help me God.'
The governor is authorized to organize a guard, which shall not consist of more than sixty persons, to protect the
mines in the Indian territory, and the guard is authorized to arrest all offenders under the act.
It is apparent that these laws are repugnant to the treaties with the Chero kee Indians which have been referred to,
and to the law of 1802. This repugnance is made so clear by an exhibition of the respective acts, that no force of
demonstration can make it more palpable.
By the treaties and laws of the United States, rights are guarantied to the Cherokees, both as it respects their
territory and internal polity. By the laws of Georgia these rights are [31 U.S. 515, 57 9] abolished; and not only
abolished, but an ignominious punishment is inflicted on the Indians and others; for the exercise of them. The
important question then arises, which shall stand, the laws of the United States, or the laws of Georgia? No rule of
construction, or subtlety of argument, can evade an answer to this question. The response must be, so far as the
punishment of the plaintiff in error is concerned, in favour of the one or the other.
Not to feel the full weight of this momentous subject, would evidence an ignorance of that high responsibility which
is devolved upon this tribunal, and upon its humblest member, in giving a decision in this case.
Are the treaties and law which have been cited, in force? and what, if any, obligations, do they impose on the federal
government within the limits of Georgia?
A reference has been made to the policy of the United States on the subject of Indian affairs, before the adoption of
the constitution, with the view of ascertaining in what light the Indians have been considered by the first official acts,
in relation to them, by the United States. For this object, it might not be improper to notice how they were
considered by the European inhabitants, who first formed settlements in this part of the continent of America.
The abstract right of every section of the human race to a reasonable portion of the soil, by which to acquire the
means of subsistence, cannot be controverted. And it is equally clear, that the range of nations or tribes, who exist in
the hunter state, may be restricted within reasonable limits. They shall not be permitted to roam, in the pursuit of
game, over an extensive and rich country, whilst in other parts, human beings are crowded so closely together, as to
render the means of subsistence precarious. The law of nature, which is paramount to all other laws, gives the right
to every nation, to the enjoyment of a reasonable extent of country, so as to derive the means of subsistence from the
soil.
In this view perhaps, our ancestors, when they first migrated to this country, might have taken possession of a
limited extent of the domain, had they been sufficiently powerful, without negotiation or purchase from the native
Indians. But this course is believed to have been nowhere taken. A more [31 U.S. 515, 580] conciliatory mode was
preferred, and one which was better calculated to impress the Indians, who were then powerful, with a sense of the
justice of their white neighbours. The occupancy of their lands was never assumed, except upon the basis of contract,
and on the payment of a valuable consideration.
This policy has obtained from the earliest white settlements in this country, down to the present time. Some cessions
of territory may have been made by the Indians, in compliance with the terms on which peace was offered by the
whites; but the soil, thus taken, was taken by the laws of conquest, and always as an indemnity for the expenses of
the war, commenced by the Indians.
At no time has the sovereignty of the country been recognized as existing in the Indians, but they have been always
admitted to possess many of the attributes of sovereignty. All the rights which belong to self government have been
recognized as vested in them. Their right of occupancy has never been questioned, but the fee in the soil has been
considered in the government. This may be called the right to the ultimate domain, but the Indians have a present
right of possession.
In some of the old states, Massachusetts, Connecticut, Rhode Island and others, where small remnants of tribes
remain, surrounded by white population, and who, by their reduced numbers, had lost the power of self government,
the laws of the state have been extended over them, for the protection of their persons and property.
Before the adoption of the constitution, the mode of treating with the Indians was various. After the formation of the
confederacy, this subject was placed under the special superintendence of the United Colonies; though, subsequent
to that time, treaties may have been occasionally entered into between a state and the Indians in its neighbourhood.
It is not considered to be at all important to go into a minute inquiry on this subject.
By the constitution, the regulation of commerce among the Indian tribes is given to congress. This power must be
considered as exclusively vested in congress, as the power to regulate commerce with foreign nations, to coin money,
to [31 U.S. 515, 581] establish post offices, and to declare war. It is enumerated in the same section, and belongs to
the same class of powers.
This investiture of power has been exercised in the regulation of commerce with the Indians, sometimes by treaty,
and, at other times, by enactments of congress. In this respect they have been placed by the federal authority, with
but few exceptions, on the same footing as foreign nations.
It is said that these treaties are nothing more than compacts, which cannot be considered as obligatory on the United
States, from a want of power in the Indians to enter into them.
What is a treaty? The answer is, it is a compact formed between two nations or communities, having the right of self
government.
Is it essential that each party shall possess the same attributes of sovereignty, to give force to the treaty? This will not
be pretended: for, on this ground, very few valid treaties could be formed. The only requisite is, that each of the
contracting parties shall possess the right of self government, and the power to perform the stipulations of the
treaty.
Under the constitution, no state can enter into any treaty; and it is believed that, since its adoption, no state, under
its own authority, has held a treaty with the Indians.
It must be admitted, that the Indians sustain a peculiar relation to the United States. They do not constitute, as was
decided at the last term, a foreign state, so as to claim the right to sue in the supreme court of the United States: and
yet, having the right of self government, they, in some sense, form a state. In the management of their internal
concerns, they are dependent on no power. They punish offences under their own laws, and, in doing so, they are
responsible to no earthly tribunal. They make war, and form treaties of peace. The exercise of these and other
powers, gives to them a distinct character as a people, and constitutes them, in some respects, a state, although they
may not be admitted to possess the right of soil.
By various treaties, the Cherokees have placed themselves under the protection of the United States: they have
agreed to trade with no other people, nor to invoke the protection of any other sovereignty. But such engagements
do not divest [31 U.S. 515, 582] them of the right of self government, nor destroy their capacity to enter into treaties
or compacts.
Every state is more or less dependent on those which surround it; but, unless this dependence shall extend so far as
to merge the political existence of the protected people into that of their protectors, they may still constitute a state.
They may exercise the powers not relinquished, and bind themselves as a distinct and separate community.
The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of
which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty,
they should be considered as used only in the latter sense. To contend that the word 'allotted,' in reference to the
land guarantied to the Indians in certain treaties, indicates a favour conferred, rather than a right acknowledged,
would, it would seem to me, do injustice to the understanding of the parties. How the words of the treaty were
understood by this unlettered people, rather than their critical meaning, should form the rule of construction.
The question may be asked, is no distinction to be made between a divilized and savage people? Are our Indians to
be placed upon a footing with the nations of Europe, with whom we have made treaties?
The inquiry is not, what station shall now be given to the Indian tribes in our country? but, what relation have they
sustained to us, since the commencement of our government?
We have made treaties with them; and are those treaties to be disregarded on our part, because they were entered
into with an uncivilized people? Does this lessen the obligation of such treaties? By entering into them, have we not
admitted the power of this people to bind themselves, and to impose obligations on us?
The president and senate, except under the treaty -making power, cannot enter into compacts with the Indians, or
with foreign nations. This power has been uniformly exercised in forming treaties with the Indians.
Nations differ from each other in condition, and that of the same nation may change by the revolutions of time, but
the [31 U.S. 515, 583] principles of justice are the same. They rest upon a base which will remain beyond the
endurance of time.
After a lapse of more than forty years since treaties with the Indians have been solemnly ratified by the general
government, it is too late to deny their binding force. Have the numerous treaties which have been formed with
them, and the ratifications by the president and senate, been nothing more than an idle pageantry?
By numerous treaties with the Indian tribes, we have acquired accessions of territory, of incalculable value to the
union. Except by compact, we have not even claimed a right of way through the Indian lands. We have recognised in
them the right to make war. No one has ever supposed that the Indians could commit treason against the United
States. We have punished them for their violation of treaties; but we have inflicted the punishment on them as a
nation, and not on individual offenders among them as traitors.
In the executive, legislative, and judicial branches of our government, we have admitted, by the most solemn
sanctions, the existence of the Indians as a separate and distinct people, and as being vested with rights which
constitute them a state, or separate community -not a foreign, but a domestic community -not as belonging to the
confederacy, but as existing within it, and, of necessity, bearing to it a peculiar relation.
But, can the treaties which have been referred to, and the law of 1802, be considered in force within the limits of the
state of Georgia?
In the act of cession, made by Georgia to the United States, in 1802, of all lands claimed by her west of the line
designated, one of the conditions was, 'that the United States should, at their own expense, extinguish, for the use of
Georgia, as early as the same can be peaceably obtained, on reasonable terms, the Indian title to lands within the
state of Georgia.'
One of the counsel, in the argument, endeavoured to show, that no part of the country now inhabited by the
Cherokee Indians, is within what is called the chartered limits of Georgia.
It appears that the charter of Georgia was surrendered [31 U.S. 515, 584] by the trustees, and that, like the state of
South Carolina, she became a regal colony. The effect of this change was, to authorise the crown to alter the
boundaries, in the exercise of its discretion. Certain alterations, it seems, were subsequently made: but I do not
conceive it can be of any importance to enter into a minute consideration of them. Under its charter, it may be
observed, that Georgia derived a right to the soil, subject to the Indian title, by occupancy. By the act of cession,
Georgia designated a certain line as the limit of that cession, and this line, unless subsequently altered, with the
assent of the parties interested, must be considered as the boundary of the state of Georgia. This line having been
thus recognized, cannot be contested on any question which may incidentally arise for judicial decision.
It is important, on this part of the case, to ascertain in what light Georgia has considered the Indian title to lands,
generally, and particularly, within her own boundaries; and also, as to the right of the Indians to self -government.
In the first place, she was a party to all the treaties entered into between the United States and the Indians, since the
adoption of the constitution. And prior to that period, she was represented in making them, and was bound by their
provisions, although it is alleged that she remonstrated against the treaty of Hopewell. In the passage of the
intercourse law of 1802, as one of the constituent parts of the union, she was also a party.
The stipulation made in her act of cession, that the United States should extinguish the Indian title to lands within
the state, was a distinct recognition of the right in the federal government, to make the extinguishment; and also,
that, until it should be made, the right of occupancy would remain in the Indians.
In a law of the state of Georgia, 'for opening the land office and for other purposes,' passed in 1783, it is declared that
surveys made on Indian lands were null and void; a fine was inflicted on the person making the survey, which, if not
paid by the offender, he was punished by imprisonment. By a subsequent act, a line was fixed for the Indians, which
was a boundary between them and the whites. A similar provision is found in other laws of Georgia, passed before
the adoption [31 U.S. 515, 585] of the constitution. By an act of 1787, severe corporeal punishment was inflicted on
those who made or attempted to make surveys, 'beyond the temporary line designating the Indian hunting ground.'
On the 19th of November 1814, the following resolutions were adopted by the Georgia legislature.
'Whereas, many of the citizens of this state, without regard to existing treaties between the friendly Indians
and the United States, and contrary to the interest and good policy of this state, have gone, and are
frequently going over, and settling and cultivating the lands allotted to the friendly Indians for their hunting
ground, by which means the state is not only deprived of their services in the army, but considerable feuds
are engendered between us and our friendly neighbouring Indians:
'Resolved, therefore, by the senate and house of representatives of the state of Georgia in general assembly
met, that his excellency, the governor, be, and is hereby requested to take the necessary means to have all
intruders removed off the Indian lands, and that proper steps be taken to prevent future aggressions.'
In 1817, the legislature refused to take any steps to dispose of lands acquired by treaty with the Indians, until the
treaty had been ratified by the senate; and, by a resolution, the governor was directed to have the line run between
the state of Georgia and the Indians, according to the late treaty. The same thing was again done in the year 1819,
under a recent treaty.
In a memorial to the president of the United States, by the legislature of Georgia, in 1819, they say, 'it has long been
the desire of Georgia, that her settlements should be extended to her ultimate limits.' 'That the soil within her
boundaries should be subjected to her control; and, that her police organization and government should be fixed and
permanent.' 'That the state of Georgia claims a right to be jurisdiction and soil of the territory within her limits.' 'She
admits, however, that the right is inchoate-remaining to be perfected by the United States, in the extinction of the
Indian title; the United States pro hac vice as their agents.'
The Indian title was also distinctly acknowledged by the act [31 U.S. 515, 586] of 1796, repealing the Yazoo act. It is
there declared, in reference to certain lands, that 'they are the sole property of the state, subject only to the right of
the treaty of the United States, to enable the state to purchase, under its pre -emption right, the Indian title to the
same;' and also, that the land is vested in the 'state, to whom the right of pre- emption to the same belongs, subject
only to the controlling power of the United State, to authorise any treaties for, and to superintend the same.' This
language, it will be observed, was used long before the act of cession.
On the 25th of March 1825, the governor of Georgia issued the following proclamation:
'Whereas it is provided in said treaty, that the United States shall protect the Indians against the
incroachments, hostilities, and impositions of the whites, so that they suffer no imposition, molestation, or
injury in their persons, goods, effects, their dwellings, or the lands they occupy, until their removal shall have
been acomplished, according to the terms of the treaty,' which had been recently made with the Indians.
'I have therefore thought proper to issue this my proclamation, warning all persons, citizens of Georgia or
others, against trespassing or intruding upon lands occupied by the Indians, within the limits of Georgia,
either for the purpose of settlement or otherwise, as every such act will be in direct violation of the
provisions of the treaty aforesaid, and will expose the aggressors to the most certain and summary
punishment, by the authorities of the state, and the United States.' 'All good citizens, therefore, pursuing the
discates of good faith, will unite in enforcing the obligations of the treaty, as the supreme law,' &c.
Many other references might be made to the public acts of the state of Georgia, to show that she admitted the
obligation of Indian treaties, but the above are believed to be sufficient. These acts do honour to the character of that
highly respectable state.
Under the act of cession, the United States were bound, in good faith, to extinguish the Indian title to lands within
the limits of Georgia, so soon as it could be done peaceably and on reasonable terms. [31 U.S. 515, 587 ] The state of
Georgia has repeatedly remonstrated to the president on this subject, and called upon the government to take the
necessary steps to fulfil its engagement. She complained that, whilst the Indian title to immense tracts of country
had been extinguished elsewhere, within the limits of Georgia but little progress had been made; and this was
attributed, either to a want of effort on the part of the federal government, or to the effect of its policy towards the
Indians. In one or more of the treaties, titles in fee simple were given to the Indians, to certain reservations of land;
and this was complained of, by Georgia, as a direct infraction of the condition of the cession. It has also been
asserted, that the policy of the government, in advancing the cause of civilization among the Cherokees, and
inducing them to assume the forms of a regular government and of civilized life, was calculated to increase their
attachment to the soil they inhabit, and to render the purchase of their title more difficult, if not impracticable.
A full investigation of this subject may not be considered as strictly within the scope of the judicial inquiry which
belongs to the present case. But, to some extent, it has a direct bearing on the question before the court; as it tends
to show how the rights and powers of Georgia were construed by her public functionaries.
By the first president of the United States, and by every succeeding one, a strong solicitude has been expressed for
the civilization of the Indians. Through the agency of the government, they have been partially induced, in some
parts of the union, to change the hunter state for that of the agriculturist and herdsman.
In a letter addressed by Mr Jefferson to the Cherokees, dated the 9th of January 1809, he recommends them to
adopt a regular government, that crimes might be punished and property protected. He points out the mode by
which a council should be chosen, who should have power to enact laws; and he also recommended the appointment
of judicial and executive agents, through whom the law might be enforced. The agent of the government, who
resided among them, was recommended to be associated with their council, that he might give the necessary advice
on all subjects relating to their government. [31 U.S. 515, 588] In the treaty of 1817, the Cherokees are encouraged to
adopt a regular form of government.
Since that time, a law has been passed making a n annual appropriation of the sum of ten thousand dollars, as a
school fund, for the education of Indian youths, which has been distributed among the different tribes where schools
had been established. Missionary labours among the Indians have also been sanctioned by the government, by
granting permits, to those who were disposed to engage in such a work, to reside in the Indian country.
That the means adopted by the general government to reclaim the savage from his erratic life, and induce him to
assume the forms of civilization, have had a tendency to increase the attachment of the Cherokees to the country
they now inhabit, is extremely probable; and that it increased the difficulty of purchasing their lands, as by act of
cession the general government agreed to do, is equally probable.
Neither Georgia, nor the United States, when the cession was made, contemplated that force should be used in the
extinguishment of the Indian title; nor that it should be procured on terms that are not reasonable. But, ma y it not
be said, with equal truth, that it was not contemplated by either party that any obstructions to the fulfilment of the
compact should be allowed, much less sanctioned, by the United States?
The humane policy of the government towards these children of the wilderness must afford pleasure to every
benevolent feeling; and if the efforts made have not proved as successful as was anticipated, still much has been
done. Whether the advantages of this policy should not have been held out by the government to the Cherokees
within the limits of Georgia, as an inducement for them to change their residence and fix it elsewhere, rather than by
such means to increase their attachment to their present home, as has been insisted on, is a question which may be
considered by another branch of the government. Such a course might, perhaps, have secured to the Cherokee
Indians all the advantages they have realized from the paternal superintendence of the government; and have
enabled it, on peaceable and reasonable terms, to comply with the act of cession.
Does the intercourse law of 1802 apply to the Indians who [31 U.S. 515, 589] live within the limits of Georgia? The
nineteenth section of that act provides, 'that it shall not be construed to prevent any trade or int ercourse with
Indians living on lands surrounded by settlements of the citizens of the United States, and being within the ordinary
jurisdiction of any of the individual states? This provision, it has been supposed, excepts from the operation of the
law the Indian lands which lie within any state. A moment's reflection will show that this construction is most clearly
erroneous.
To constitute an exception to the provisions of this act, the Indian settlement, at the time of its passage, must have
been surrounded by settlements of the citizens of the United States, and within the ordinary jurisdiction of a state;
not only within the limits of a state, but within the common exercise of its jurisdiction.
No one will pretend that this was the situation of the Cherokees who lived within the state of Georgia in 1802; or,
indeed, that such is their present situation. If, then, they are not embraced by the exception, all the provisions of the
act of 1802 apply to them.
In the very section which contains the exception, it is provided, that the use of the road from Washington district to
Mero district should be enjoyed, and that the citizens of Tennessee, under the orders of the governor, might keep the
road in repair. And in the same section, the navigation of the Tennessee river is reserved, and a right to travel from
Knoxville to Price's settlement, provided the Indians should not object.
Now, all these provisions relate to the Cherokee country; and can it be supposed, by any one, that such provisions
would have been made in the act, if congress had not considered it as applying to the Cherokee country, whether in
the state of Georgia, or in the state of Tennessee?
The exception applied, exclusively, to those fragments of tribes which are found in several of the states, and which
came literally within the description used.
Much has been said against the existence of an independent power within a sovereign state; and the conclusion has
been drawn, that the Indians, as a matter of right, cannot enforce their own laws within the territorial limits of a
state. The refutation of this argument is found in our past history. [31 U.S. 515, 590] That fragments of tribes, having
lost the power of self-government, and who lived within the ordinary jurisdiction of a state, have been taken under
the protection of the laws, has already been admitted. But there has been no instance, where the state laws have
been generally extended over a numerous tribe of Indians, living within the state, and exercising the right of self government, until recently.
Has Georgia ever, before her late laws, attempted to regulate the Indian communities within her limits? It is true,
New York extended her criminal laws over the remains of the tribes within that state, more for their protection than
for any other purpose. These tribes were few in number, and were surrounded by a white population. But, even the
state of New York has never asserted the power, it is believed, to regulate their concerns beyond the suppression of
crime.
Might not the same objection to this interior independent power, by Georgia, have been urged, with as much force as
at present, ever since the adoption of the constitution? Her chartered limits, to the extent claimed, embraced a great
number of different nations of Indians, all of whom were governed by their own laws, and were amenable only to
them. Has not this been the condition of the Indians within Tennessee, Ohio, and other states?
The exercise of this independent power surely does not become more objectionable, as it assumes the basis of justice
and the forms of civilization. Would it not be a singular argument to admit, that, so long as the Indians govern by the
rifle and the tomahawk, their government may be tolerated; but, that it must be suppressed, so soon as it shall be
administered upon the enlightened principles of reason and justice?
Are not those nations of Indians who have made some advances in civilization, better neighbours than those who are
still in a savage state? And is not the principle, as to their self government, within the jurisdiction of a state, the
same?
When Georgia sanctioned the constitution, and conferred on the national legislature the exclusive right to regulate
commerce or intercourse with the Indians, did she reserve the right to regulate intercourse with the Indians within
her limits? This will not be pretended. If such had been the construction of her own powers, would they not have
been exercised? [31 U.S. 515, 591 ] Did her senators object to the numerous treaties which have been formed with the
different tribes, who lived within her acknowledged boundaries? Why did she apply to the executive of the union,
repeatedly, to have the Indian title extinguished; to establish a line between the Indians and the state, and to procure
a right of way through the Indian lands?
The residence of Indians, gov erned by their own laws, within the limits of a state, has never been deemed
incompatible with state sovereignty, until recently. And yet, this has been the condition of many distinct tribes of
Indians, since the foundation of the federal government.
How is the question varied by the residence of the Indians in a territory of the United States? Are not the United
States sovereign within their territories? And has it ever been conceived, by any one, that the Indian governments,
which exist in the territories, are incompatible with the sovereignty of the union?
A state claims the right of sovereignty, commensurate with her territory; as the United States claim it, in their proper
sphere, to the extent of the federal limits. This right or power, in some cases, may be exercised, but not in others.
Should a hostile force invade the country, at its most remote boundary, it would become the duty of the general
government to expel the invaders. But it would violate the solemn compacts with the Indians, without caus e, to
dispossess them of rights which they possess by nature, and have been uniformly acknowledged by the federal
government.
Is it incompatible with state sovereignty to grant exclusive jurisdiction to the federal government over a number of
acres of land, for military purposes? Our forts and arsenals, though situated in the different states, are not within
their jurisdiction.
Does not the constitution give to the United States as exclusive jurisdiction in regulating intercourse with the
Indians, as has been given to them over any other subjects? Is there any doubt as to this investiture of power? Has it
not been exercised by the federal government, ever since its formation, not only without objection, but under the
express sanction of all the states?
The power to dispose of the public domain is an attribute [31 U.S. 515, 592] of sovereignty. Can the new states
dispose of the lands within their limits, which are owned by the federal government? The power to tax is also an
attribute of sovereignty; but, can the new states tax the lands of the United States? Have they not bound themselves,
by compact, not to tax the public lands, nor until five years after they shall have been sold? May they violate this
compact, at discretion?
Why may not these powers be exercised by the respective states? The answer is, because they have parted with them,
expressly for the general good. Why may not a state coin money, issue bills of credit, enter into a treaty of alliance or
confederation, or regulate commerce with foreign nations? Because these powers have been expressly and
exclusively given to the federal government.
Has not the power been as expressly conferred on the federal government, to regulate intercourse with the Indians;
and is it not as exclusively given, as any of the powers above enumerated? There being no exception to the exercise of
this power, it must operate on all communities of Indians, exercising the right of self -government; and consequently,
include those who reside within the limits of a state, as well as others. Such has been the uniform construction of this
power by the federal government, and of every state government, until the question was raised by the state of
Georgia.
Under this clause of the constitution, no political jurisdiction over the Indians, has been claimed or exercised. The
restrictions imposed by the law of 1802, come strictly within the power to regulate trade; not as an incident, but as a
part of the principal power. It is the same power, and is conferred in the same words, that has often been exercised
in regulating trade with foreign countries. Embargoes have been imposed, laws of non-intercourse have been passed,
and numerous acts, restrictive of trade, under the power to regulate commerce with foreign nations.
In the regulation of commerce with the Indians, congress have exercised a more limited power than has been
exercised in reference to foreign countries. The law acts upon our own citizens, and not upon the Indians, the same
as the laws referred to act upon our own citizens in their foreign commercial intercourse. [31 U.S. 515, 593] It will
scarcely be doubted by any one, that, so far as the Indians, as distinct communities, have formed a connexion with
the federal government, by treaties; that such connexion is politic al, and is equally binding on both parties. This
cannot be questioned, except upon the ground, that in making these treaties, the federal government has
transcended the treaty -making power. Such an objection, it is true, has been stated, but it is one of modern
invention, which arises out of local circumstances; and is not only opposed to the uniform practice of the
government, but also to the letter and spirit of the constitution.
But the inquiry may be made, is there no end to the exercise of this power over Indians within the limits of a state, by
the general government? The answer is, that, in its nature, it must be limited by circumstances.
If a tribe of Indians shall become so degraded or reduced in numbers, as to lose the power of self -government, the
protection of the local law, of necessity, must be extended over them. The point at which this exercise of power by a
state would be proper, need not now be considered: if indeed it be a judicial question. Such a question does not seem
to arise in this case. So long as treaties and laws remain in full force, and apply to Indian nations, exercising the right
of self-government, within the limits of a state, the judicial power can exercise no discretion in refusing to give effect
to those laws, when questions arise under them, unless they shall be deemed unconstitutional.
The exercise of the power of self-government by the Indians, within a state, is undoubtedly contemplated to be
temporary. This is shown by the settled policy of the government, in the extinguishment of their title, and especially
by the compact with the state of Georgia. It is a question, not of abstract right, but of public policy. I do not mean to
say, that the same moral rule which should regulate the affairs of private life, should not be regarded by
communities or nations. But, a sound national policy does require that the Indian tribes within our states should
exchange their territories, upon equitable principles, or, eventually, consent to become amalgamated in our political
communities.
At best they can enjoy a very limited independence within [31 U.S. 515, 594] the boundaries of a state, and such a
residence must always subject them to encroachments from the settlements around them; and their existence within
a state, as a separate and independent community, may seriously embarrass or obstruct the operation of the state
laws. If, therefore, it would be inconsistent with the political welfare of the states, and the social advance of their
citizens, that an independent and permanent power should exist within their limits, this power must give way to the
greater power which surrounds it, or seek its exercise beyond the sphere of state authority.
This state of things can only be produced by a co-operation of the state and federal governments. The latter has the
exclusive regulation of intercourse with the Indians; and, so long as this power shall be exercised, it cannot be
obstructed by the state. It is a power given by the constitution, and sanctioned by the most solemn acts of both t he
federal and state governments: consequently, it cannot be abrogated at the will of a state. It is one of the powers
parted with by the states, and vested in the federal government. But, if a contingency shall occur, which shall render
the Indians who reside in a state, incapable of self- government, either by moral degradation or a reduction of their
numbers, it would undoubtedly be in the power of a state government to extend to them the aegis of its laws. Under
such circumstances, the agency of the general government, of necessity, must cease.
But, if it shall be the policy of the government to withdraw its protection from the Indians who reside within the
limits of the respective states, and who not only claim the right of self government, but have uniformly exercised it;
the laws and treaties which impose duties and obligations on the general government should be abrogated by the
powers competent to do so. So long as those laws and treaties exist, having been formed within the sphere of the
federal powers, they must be respected and enforced by the appropriate organs of the federal government.
The plaintiff who prosecutes this writ of error, entered the Cherokee country, as it appears, with the express
permission of the president, and under the protection of the treaties of the United States, and the law of 1802. He
entered, not to corrupt the morals of this people, nor to profit by their substance; but to [31 U.S. 515, 595] teach
them, by precept and example, the Christian religion. If he be unworthy of this sacred office; if he had any other
object than the one professed; if he sought, by his influence, to counteract the humane policy of the federal
government towards the Indians, and to embarrass its efforts to comply with its solemn engagement wit h Georgia;
though his sufferings be illegal, he is not a proper object of public sympathy.
It has been shown, that the treaties and laws referred to come within the due exercise of the constitutional powers of
the federal government; that they remain in full force, and consequently must be considered as the supreme laws of
the land. These laws throw a shield over the Cherokee Indians. They guarantied to them their rights of occupancy, of
self- government, and the full enjoyment of those blessings which might be attained in their humble condition. But,
by the enactments of the state of Georgia, this shield is broken in pieces-the infant institutions of the Cherokees are
abolished, and their laws annulled. Infamous punishment is denounced against them, for the exercise of those rights
which have been most solemnly guarantied to them by the national faith.
Of these enactments, however, the plaintiff in error has no right to complain, nor can he question their validity,
except in so far as they affect his interests. In this view and in this view only, has it become necessary, in the present
case, to consider the repugnancy of the laws of Georgia to those of the union.
Of the justice or policy of these laws, it is not my province to speak: such considerations be longing to the legislature
by whom they were passed. They have, no doubt, been enacted under a conviction of right, by a sovereign and
independent state, and their policy may have been recommended, by a sense of wrong under the compact. Thirty
years have elapsed since the federal government engaged to extinguish the Indian title, within the limits of Georgia.
That she has strong ground of complaint arising from this delay, must be admitted; but such considerations are not
involved in the present case; they belong to another branch of the government. We can look only to the law, which
defines our power, and marks out the path of our duty.
Under the administration of the laws of Georgia, a citizen of [31 U.S. 515, 596] the United States has been deprived
of his liberty; and, claiming protection under the treaties and laws of the United States, he makes the question, as he
has a right to make it, whether the laws of Georgia, under which he is now suffering an ignominious punishment, are
not repugnant to the constitution of the United States, and the treaties and laws made under it. This repugnancy has
been shown; and it remains only to say, what has before been often said by this tribunal of the local laws of many of
the states in this union, that, being repugnant to the constitution of the United States, and to the laws made under it,
they can have no force to divest the plaintiff in error of his property or liberty.
Mr Justice BALDWIN dissented: stating that in his opinion, the record was not properly returned upon the writ of
error; and ought to have been returned by the state court, and not by the clerk of that court. As to the merits, he said
his opinion remained the same as was expressed by him in the case of the Cherokee Nation v. The State of Georgia,
at the last term.
The opinion of Mr Justice Baldwin was not delibered to the reporter.
This cause came on to be heard on the transcript of the record from the super ior court for the county of Gwinnett, in
the state of Georgia, and was argued by counsel; on consideration whereof, it is the opinion of this Court, that the act
of the legislature of the state of Georgia, upon which the indictment in this case is founded, is contrary to the
constitution, treaties, and laws of the United States; and that the special plea in bar pleaded by the said Samuel A.
Worcester, in manner aforesaid, and relying upon the constitution, treaties, and laws of the United States aforesaid,
is a good bar and defence to the said indictment, by the said Samuel A. Worcester; and as such ought to have been
allowed and admitted by the said superior court for the county of Gwinnett, in the state of Georgia, before which the
said indictment was pending and tried; and that there was error in the said superior court of the state of Georgia, in
overruling the plea so pleaded as aforesaid. It is therefore ordered and adjudged, that the judgment rendered in [31
U.S. 515, 597 ] the premises, by the said superior court of Georgia, upon the verdict upon the plea of Not guilty
afterwards pleaded by the said Samuel A. Worcester, whereby the said Samuel A. Worcester is sentenced to hard
labour in the penitentiary of the state of Georgia, ought to be reversed and annulled. And this court proceeding to
render such judgment as the said superior Court, of the state of Georgia should have rendered, it is further ordered
and adjudged, that the said judgment of the said superior court be, and hereby is reversed and annulled; and that
judgment be, and hereby is awarded, that the special plea in bar, so as aforesaid pleaded, is a good and sufficient
plea in bar in law to the indictment aforesaid; and that all proceedings on the said indictment do for ever surcease;
and that the said Samuel A. Worcester be, and hereby is henceforth dismissed therefrom, and that he go thereof quit
without day. And that a special mandate do go from this court, to the said superior court, to carry this judgment into
execution.
In the case of Butler, Plaintiff in Error v. The State of Georgia, the same judgment was given by the court, and a
special mandate was ordered from the court to the superior court of Gwinnett county, to carry the judgment into
execution.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=31&invol=515
from A letter on the Condition of the Cherokee People
Samuel A. Worcester
Samuel Worchester was a Methodist missionary living among the Cherokee in New Echota . His
arrest and trial under contested Georgia laws claiming jurisdiction over Cherokee territory led to
the U. S. Supreme Court decision in the case of Worchester v. State of Georgia in which the
court ruled against Georgia's claim; a decision that President Jackson refused to enforce.
The following letter appeared in the Cherokee Phoenix two months after the a copy of the
editorial by Reverend Ely was printed and is Worchester's response and assessment of
Cherokee civilization.
New Echota, Cher. Nation
March 15, 1830
Mr. Wm. S. Coodey
Washington City.
Dear Sir:
I cheerfully comply with your request, that I would forward to you a statement respecting the progress
of improvement among your people, the Cherokees.
... It may not be amiss to state, briefly, what opportunities I have enjoyed of forming a judgment
respecting the state of the Cherokee people. It was four years last October, since I came into the
nation, during which time I have made it my home, having resided two years at Brainerd, and the
remainder of the time at this place. Though I have not spent very much of the time in travelling, yet I
have visited almost every part of the nation, except a section on the Northeast. Two annual sessions
of the General Council have passed while I have been residing at the Seat of Government, at which
times a great number of the people of all classes and from all parts are to be seen.
... The printed constitution and laws of your nation, also, you doubtless have. They show your
progress in civil polity. As far as my knowledge extends, they are executed with a good degree of
efficiency, and their execution meets with not the least hinderance from anything like a spirit of
insubordination among the people. Oaths are constantly administered in the courts of justice, and I
believe I have never heard of an instance of perjury.
It has been well observed by others, that the progress of a people in civilizations is to be determined
by comparing the present with the past. I can only compare what I see with what I am told has been.
The principal chief is about forty years of age. When he was a boy, his father procured him a good
suit of clothes, in the fashion of the sons of civilized people; but he was so ridiculed by his mates as a
white boy that he took off his new suit, and refused to wear it. The editor of the Cherokee Phoenix is
twenty-seven years old. He well remembers that he felt awkward and ashamed of his singularity,
when he began to wear the dress of a white boy. Now every boy is proud of a civilized suit, and
those feel awkward and ashamed of their singularity who are destitute of it. At the last session of the
General Council, I scarcely recollect having seen any members who were not clothed in the same
manner as the white inhabitants of the neighboring States; and these very few, (I am informed that
the precise number was four) who were partially clothed in Indian style, were, nevertheless, very
decently attired. The dress of civilized people is general throughout the nation. I have seen, I
believe, only one Cherokee woman, and she an aged woman, away from her home, who was not
clothed in at least a decent long gown. At home only one, a very aged woman, who appeared willing
to be seen in original native dress; three or four, only, who had at their own houses dressed
themselves in Indian style, but hid themselves with shame at the approach of a stranger. I am thus
particular, because particularity gives more accurate ideas than general statements. Among the
elderly men there is yet a considerable portion, I dare not say whether a majority or a minority, who
retain the Indian dress in part. The younger men almost all dress like the whites around them, except
that the greater number wear a turban instead of a hat, and in cold weather a blanket frequently
serves for a cloak. Cloaks, however, are becoming common. There yet remains room for
improvement in dress, but that improvement is making with surprising rapidity.
The arts of spinning and weaving, the Cherokee women generally, put in practice. Most of their
garments are of their own spinning and weaving, from cotton the produce of their own fields; though
considerable northern domestic, and much calico, is worn, nor is silk uncommon. Numbers of the
men wear imported cloths, broadcloths (sic), &c. and many wear mixed cotton and wool, the
manufacture of their wives; but the greater part are clothed principally in cotton.
Except in the arts of spinning and weaving, but little progress has been made in manufactures. A few
Cherokees, however are mechanics.
Agriculture is the principal employment and support of the people. It is the dependence of almost
every family. As to the wandering part of the people, who live by the chase, if they are to be found in
the nation, I certainly have not found them, nor even heard of them, except from the floor of
Congress, and other distant sources of information. I do not know of a single family who depend, in
any considerable degree, on game for support. It is true that deer and turkies (sic) are frequently
killed, but not in sufficient numbers to form any dependence as the means of subsistence. The land
is cultivated with very different degrees of industry; but I believe that few fail of an adequate supply of
food. The ground is uniformly cultivated by means of the plough, and not as formerly, by the hoe
only.
The houses of the Cherokees are of all sorts; from an elegant painted or brick mansion, down to a
very mean log cabin. If we speak, however, of the mass of the people, they live in comfortable log
houses, generally one story high, but frequently two; sometimes of hewn logs, and sometimes
unhewn; commonly with a wooden chimney, and a floor of puncheons, or what a New England man
would call slabs. Their houses are not generally well furnished, many have scarcely any furniture,
though a few are furnished even elegantly, and many decently. Improvement in the furniture of their
houses appears to follow after improvement in dress, but at present is making rapid progress.
As to education, the number who can read and write English is considerable, though it bears but a
moderate proportion to the whole population. Among such, the degree of improvement and
intelligence is various. The Cherokee language, as far as I can judge, is read and written by a large
majority of those between childhood and middle age. Only a few who are much beyond middle age
have learned.
In regard to the progress of religion, I cannot, I suppose, do better than to state, as nearly as I am
able, the number of members in the churches of the several denominations. The whole number of
native members of the Presbyterian churches is not far from 180. In the churches of the United
Brethren are about 54. In the Baptist churches I do not know the number; probably as many as 50.
The Methodists, I believe reckon in society, more than 800; of whom I suppose the greater part are
natives. Many of the heathenish customs of the people have gone entirely, or almost entirely, into
disuse, and others are fast following their steps. I believe the greater part of the people acknowledge
the Christian religion to be the true religion, although many who make this acknowledgment know
very little of that religion, and many others do no feel its power. Through the blessing of our God,
however, religion is steadily, gaining ground.
But, it will be asked, is the improvement which has been described, general among the people, and
are the full-blooded Indians civilized, or only the half-breeds? I answer that, in the description which I
have given, I have spoken of the mass of the people, with out distinction. If it be asked however,
what class are most advanced- I answer, as a general thing- those of mixed blood. They have taken
the lead, although some of full blood are as refined as any. But, though those of mixed blood are
generally in the van, as might naturally be expected, yet the whole mass of the people is on the
march....
Your sincere friend,
SAMUEL A. WORCESTER.
The Cherokee Indians Speak to the U.S. Government
Letter
Background Notes
Excerpt from a letter from a Cherokee delegation to John C. Calhoun, Sec. of War, during Pres.
James Monroe’s Administration.
Transcription of Primary Source
City of Washington, February 11, 1824
SIR: We have received your letter of the 30th ultimo, containing the answer which the President
directed you to communicate to us, in reply to a particular subject embraced in the letter which we
had the honor of laying before him on the 19th ultimo.
In this answer we discover new propositions for the extinguishment of Cherokee titles to lands for the
benefit of Georgia. We beg leave to say to the President, through you, the Cherokee nation are
sensible that the United States are bound, by their compact with Georgia, to extinguish, for the use of
that State, the Indian title to lands within the limits claimed by the State, “as soon as it can be done
peaceably and on reasonable conditions;” and are also sensible that this compact is no more than a
conditional one, and, without the free and voluntary consent of the Cherokee nation, can never be
complied with on the part of the United States. And, having been duly authorized to make known to
the Government of the United States the true sentiments and disposition of the nation on the subject,
the President has been informed that the Cherokees have come to a decisive and unalterable
conclusion never to cede away any more lands. And as the extinguishment of the Cherokee title to
lands can never be obtained on conditions which will accord with the import of the compact bet ween
the United States and Georgia, it is desirable that the Government should adopt some other mans to
satisfy Georgia, than to remain any longer under anticipation of being enabled to accomplish the
object of purchasing the Cherokee title. The United States now possess an extensive territory in the
Floridas; why not extend the limits of Georgia in that section of country, if her present bounds be
considered too small? The Cherokee nation have never promised to surrender at any future period, to
the United States, for Georgia, their title to lands; but, on the contrary the United States have, by
treaties, solemnly guarantied to secure to the Cherokees forever their title to lands which have been
reserved by them: therefore, the State of Georgia can have no reasonable plea against the
Cherokees for refusing to yield their little all to the United States, so that her own aggrandizement
may be raised upon their ruins.
You express a wish “to have a free communication with us on this subject, and to appeal to the good
sense and to the interest of the nation, as pointed out by their own experience, and by that of their
ancestors, for near two centuries back.” In accordance with your wishes, we will speak frankly, and
with all the good sense we may possess, and, keeping strictly in view the interest of our nation, look
back to circumstances which have transpired, and endeavor to trace the causes which produced
them; and also to observe the present state of things, and look forward to such objects as may be
practically attainable for the best interest of the Cherokee people.
By tracing the situation of our ancestors for two hundred years back, we see nothing desirable, but
much to deplore. The happiness which the Indians once enjoyed, by a quiet and undisturbed ease, in
their primitive situation, before the face of the white man was seen on this continent, was now
poisoned by the bad fruits of the civilized tree which was planted around them. Tumultuous wars
arose, and the mountains and plains were covered with carnage, and the Elysian valleys drenched
with blood; and many noble tribes, whose unfortunate doom it was to have been overshadowed by
the expanded branches of this tree, drooped, withered, and are no more. Such are the scenes
brought to our view by looking back to the situation of our ancestors at the period to which you have
called attention. Let us now, for a moment, seriously reflect on the true causes which have universally
produced the extinction of Indian tribes, when they became merged into the white pop ulation; and we
doubt not that it will be admitted at once that, by ambition, pride, and avariciousness of the civilized
man, the untutored sons of nature became a prey. Defrauded out of their lands; treated as inferior
beings, on account of their poverty and ignorance, they became associated with the lowest grade of
society, from whom the habits of intemperance, debauchery, and all the vices of degradation peculiar
to that class, were by them soon imbibed. Their lands having been swept from under their fee t by the
ingenuity of the white man and being left destitute of a home, ignorant the arts and sciences, and
possessing no experience in the employment of a laborious and industrious life to obtain a living, they
became straggling wanderers among strangers; and, by oppressions, their spirits were depressed,
and considering themselves degraded, they were induced to hurry away their troublesome existence
by inhaling the noxious vapors of intemperance (a fatal remedy) to settle their doom of extinction.
Such have been the circumstances and causes which have swept into oblivion the names of many
tribes of Indians that once possessed and inhabited the soil of these United States; and such must be
the fate of those tribes now in existence, should they be merged into the white population before they
become completely civilized and shall have learned the arts and sciences; and such would be the fate
of a large portion of the Cherokee nation, were they to cede away all their lands, and now become
incorporated with the whites.
You say that “we must be sensible that it will be impossible for us to remain, for any length of time, in
our present situation, as a distinct society or nation, within the limits of Georgia, or of any other State;
and that such a community is incompatible with your system, and must yield to it; and that we must
either cease to be a distinct community, and become, at no distant period, a part of the State within
whose limits we are, or remove without the limits of any State;” and that “it remains for the Cherokee
nation to decide for itself, whether it will contribute most to their own welfare and happiness for them
to retain their present title to their lands, and remain where they are exposed to the discontent of
Georgia and the pressure of her citizens; or to cede it to the United States, for Georgia, at a fair price,
to be paid either in other lands beyond the Mississippi, or in money.” Sir, to these remarks we beg
leave to observe, and to remind you, that the Cherokees are not foreigners, but original inhabitants of
America; and that they now inhabit and stand on the soil of their own territory; and that the limits of
their territory are defined by the treaties which they have made with the Government of the United
States; and that the States by which they are now surrounded have been created out of lands which
were once theirs; and that they cannot recognise the sovereignty of any State within the limits of their
territory. Confiding in the good faith of the United States to respect their treaty stipulations with the
Cherokee nation, we have no hesitation in saying that the true interest, prosperity, and happiness of
our nation demand their permanency where they are, and to retain their present title to their lands. In
doing so, we cannot see, in the spirit of liberality, honor, magnanimity, equity, and justice, how they
can be exposed to the discontent of Georgia or the pressure of her citizens. An extent of territory
twice as large, west of the Mississippi, as the one now occupied by the Cherokees east of that river,
or all the money now in the coffers of your treasure would be no inducement for the nation to
exchange or to sell their country. It rests with the interest, the disposition, and the free consent of the
nation to remain as a separate community, or to enter into a treaty with the United States for
admission as citizens, under the form of a Territorial or State Government; and we can only say, that
the situation of the nation is not sufficiently improved in the arts of civilized life to warrant any change
at present: therefore, the subject must be left for our posterity to determine for themselves, whenever
the whole nation shall have been completely and fully civilized, and shall have possessed the arts
and sciences.
With considerations of high respect and esteem, we have the honor to be, sir, your very obedient,
humble servants,
JOHN ROSS,
GEORGE LOWREY,
MAJOR RIDGE, his X mark.
ELIJAH HICKS.
Excerpt from North Carolina Digital History on Chief John Ridge's
Reason for Change of Mind
In December 1835, the U.S. resubmitted the treaty to a meeting of 300 to 500 Cherokees at New Echota. Older
now, Major Ridge spoke of his reasons for supporting the treaty:
"I am one of the native sons of these wild woods. I have hunted the deer and turkey here, more than fifty years.
I have fought your battles, have defended your truth and honesty, and fair trading. The Georgians have shown a
grasping spirit lately; they have extended their laws, to which we are unaccustomed, which harass our braves
and make the children suffer and cry. I know the Indians have an older title than theirs. We obtained the land
from the living God above. They got their title from the British. Yet they are strong and we are weak. We are
few, they are many. We cannot remain here in safety and comfort. I know we love the graves of our fathers. We
can never forget these homes, but an unbending, iron necessity tells us we must leave them. I would willingly
die to preserve them, but any forcible effort to keep them will cost us our lands, our lives and the lives of our
children. There is but one path of safety, one road to future existence as a Nation. That path is open before you.
Make a treaty of cession. Give up these lands and go over beyond the great Father of Waters."8
Twenty men, none of them elected officials of the tribe, signed the treaty, ceding all Cherokee territory east of
the Mississippi to the U.S. in exchange for $5 million and new homelands in Indian Territory. Major Ridge is
reported to have said that he was signing his own death warrant.
The Treaty of New Echota was widely protested by Cherokees and by whites. The tribal members who opposed
relocation considered Major Ridge and the others who signed the treaty traitors. After an intense debate, the
U.S. Senate approved the Treaty of New Echota on May 17, 1836, by a margin of one vote. It was signed into
law on May 23. As John Ross worked to negotiate a better treaty, the Cherokees tried to sustain some sort of
normal life — even as white settlers carved up their lands and drove them from their homes. Removal had
become inevitable. It was simply a matter now of how it would be accomplished.
"To the Cherokee Tribe of Indians" from Jackson
Newspaper Article
Background Notes
One of the strategies developed to deal with the conflict between white American settlers and Native American
lands was to negotiate treaties which voluntarily exchanged the lands of Indian tribes in the east for lands west
of the Mississippi. Five assimilated tribes, the Cherokee, Creek, Choctaw, Chickasaw and Seminoles, known as
the "Five Civilized Tribes" negotiated approximately thirty treaties with the United States between 1789 and
1825. In 1824, President Monroe announced to Congress that he thought all Indians should be relocated west of
the Mississippi. Monroe was pressured by the state of Georgia to make his statement because gold had been
discovered on Cherokee land in Northwest Georgia and the state of Georgia wanted to claim it. The Cherokees
resisted and sought to maintain their land. They had adopted a formal constitution, declared an independent
Cherokee nation, and elected John Ross as their Chief in 1828. As expected, the Georgia legislature annulled
the Cherokee constitution and ordered seizure of their lands. The Cherokees again resisted and took their claim
of sovereignty to the United States Supreme court. In their second case, Worcester v. Georgia (1832), Supreme
Court Chief Justice John Marshall ruled that the Cherokee Nation was entitled to federal protection over those
of the state laws of Georgia. The Court ruled "the Indian nation was a "distinct community in which the laws of
Georgia can have no force" and into which Georgians could not enter without the permission of the Cherokees
themselves or in conformity with treaties.
Transcription of Primary Source
To the Cherokee Tribe of Indians East of the
Mississippi river.
MY FRIENDS: I have long viewed your condition with great interest. For many years I have been acquainted
with your people, and under all variety of circumstances, in peace and war. Your fathers were well known to
me, and the regard which I cherished for them has caused me to feel great solicitude for your situation. To these
feelings, growing out of former recollections, have been added the sanction of official duty, and the relation in
which, by the Constitution and laws, I am placed towards you. Listen to me, therefore, as your fathers have
listened, while I communicate to you my sentiments on the critical state of your affairs.
You are now placed in the midst of a white population. Your peculiar customs, which regulated your
intercourse with one another, have been abrogated by the great political community among which you live; and
you are now subject to the same laws which govern the other citizens of Georgia and Alabama. You are liable
to prosecutions for offences, and to civil actions for a breach of a ny of your contracts.-Most of your people are
uneducated, and are liable to be brought into collision at all times with their white neighbors. Your young men
are acquiring habits of intoxication. With strong passions, and without those habits of restraint, which our laws
inculcate and render necessary, they are frequently driven to excesses which must eventually terminate in their
ruin. The game has disappeared among you, and you must depend upon agriculture and the mechanic arts for
support. And, yet, a large portion of your people have acquired little or no property in the soil itself, or in any
article of personal property which can be useful to them. How, under these circumstances can you live in the
country you now occupy? Your condition must become worse & worse, and you will ultimately disappear, as so
many tribes have done before you.
Of all this I warned your people, when I met them in council eighteen years ago. I then advised them to sell out
their possessions East of the Mississippi and to remove to the country west of that river. This advice I have
continued to give you at various times from that period down to the present day, and can you now look back and
doubt the wisdom of this council? Had you then removed, you would have gone with all the means necessary to
establish yourselves in a fertile country, sufficiently extensive for your subsistence, and beyond the reach of the
moral evils which are hastening your destruction. Instead of being a divided people as you now are, arrayed into
parties bitterly opposed to each other, you would have been a prosperous and a united community. Your farms
would have been open and cultivated, comfortable houses would have been erected, the means of subsistence
abundant and you would have been governed by your o wn customs and laws, and removed from the effects of a
white population. Where you now are, you are encompassed by evils, moral and physical, & these are fearfully
increasing.
Look even at the experience of the last few years. What have you gained by adhering to the pernicious counsels
which have led you to reject the liberal offers made for your removal? They promised you an improvement in
your condition. But instead of that, every year has brought increasing difficulties. How, then, can you place
confidence in the advice of men who are misleading you for their own purposes, and whose assurances have
proved, from the experience of every year, to be utterly unfounded?
I have no motive, my friends, to deceive you. I am sincerely desirous to promote your welfare. Listen to me,
therefore, while I tell you that you cannot remain where you now are. Circumstances that cannot be controlled,
and which are beyond the reach of human laws, render it impossible that you can flourish in the midst of a
civilized community. You have but one remedy within your reach. And that is, to remove to the west and join
your countrymen, who are already established there. And the sooner you do this, the sooner you can commence
your career of improvement and prosperity.
A number of your brethren, who have been delegated by that portion of your people favorable to emigration,
have repared to this place, in the hope of being able to make some arrangement, which would be acceptable to
the government of the United States, and which would meet your approbation. They do not claim the right of
making any arrangement which would be binding upon you; but have expressly stated, that whatever they did
would be utterly void, unless submitted to and approved by you.
The whole subject has been taken into consideration, and an arrangement has been made, which ought to be,
and I trust will be, entirely satisfactory to you. The Senate of the United States have given their opinion of the
value of your possessions; and the value is ensured to you in the arrangement that has been prepared. Mr. John
Ross, & the party who were with him, expressed their determination to accept, so far as they were concerned,
such a sum as the Senate might consider just, and promised to recommend and support the same in your general
council.-The stipulations contained in this instrument are designed to afford due protection to private rights, to
make adequate provision for the poorer class of your people, to provide for the removal of all, and to lay the
foundation of such social and political establishments in your new country as will render you a happy and
prosperous people. Why, then, should any honest man among you object to removal? The United States have
assigned to you a fertile and extensive country, with a very fine climate adapted to your habits, and with all the
other natural advantages which you ought to desire or expect.
I shall, in the course of a short time, appoint commissioners for the purpose of meeting the whole body of your
people in council. They will explain to you, more fully, my views, and the nature of the stipulations which are
offered to you.
These stipulations provide:
1st. For an addition to the country already assigned to you west of the Mississippi, and for the conveyance of
the whole of it, by patent, in fee simple. And also for the security of the necessary political rights, and for
preventing white persons from trespassing upon you.
2d. For the payment of the full value to each individual, of his possession in Georgia, Alabama, North Carolina
and Tennessee.
3d. For the removal, at the expense of the United States, of your whole people; for their subsistence for a year
after their arrival in their new country, and for a gratuity of one hundred and fifty dollars to each person.
4th. For the usual supply of rifles, blankets, and kettles.
5th. For the investment of the sum of four hundred thousand dollars, in order to secure a permanent annuity.
6th. For adequate provision for schools, agricultural instruments, domestic animals, missionary establishments,
the support of orphans, &c.
7th. For the payment of claims.
8th. For granting pensions to such of your people as have been disabled in the service of the United States.
These are the general provisions contained in the arrangement. But there are many ot her details favorable to you
which I do not stop here to enumerate, as they will be placed before you in the arrangement itself. Their total
amount is four millions five hundred thousand dollars, which added to the sum of five hundred thousand
dollars, estimated as the value of the additional land granted you, makes five millions of dollars. A sum, which
if equally divided among all your people east of the Mississippi, estimating them at ten thousand, which I
believe is their full number, would give five hundred dollars to every man, woman, and child in your nation.
There are few separate communities, whose property, if divided, would give to the persons composing them,
such an amount. It is enough to establish you all in the most comfortable manner; and it is to be observed, that
besides this, there are thirteen millions of acres conveyed to the western Cherokees and yourselves by former
treaties, and which are destined for your and their permanent residence. So that your whole country, west of the
Mississippi, will contain not less than thirteen millions eight hundred thousand acres.
The choice now is before you. May the Great Spirit teach you how to choose. The fate of your women and
children, the fate of your people to the remotest generation, depend upon the issue. Deceive yourselves no
longer. Do not cherish the belief that you can ever resume your former political situation, while you continue in
your present residence. As certain as the sun shines to guide you in your path, so certain is it that you ca nnot
drive back the laws of Georgia from among you. Every year will increase your difficulties. Look at the
condition of the Creeks. See the collisions which are taking place with them. See how their young men are
committing depredations upon the property of our citizens, and are shedding their blood. This cannot and will
not be allowed. Punishment will follow, and all who are engaged in these offences must suffer. Your young
men will commit the same acts, and the same consequences must ensue.
Think then of all these things. Shut your ears to bad consels. Look at your condition as it now is, and then
consider what it will be if you follow the advice I give you.
Your friend,
Signed, ANDREW JACKSON.
Washington, March 16th, 1835.
John G. Burnett’s Story of the Removal of the Cherokees
Birthday Story of Private John G. Burnett, Captain Abraham McClellan’s Company, 2nd Regiment, 2nd Brigade,
Mounted Infantry, Cherokee Indian Removal, 1838-39.
Children:
This is my birthday, December 11, 1890, I am eighty years old today. I was born at Kings Iron Works in Sulllivan
County, Tennessee, December the 11th, 1810. I grew into manhood fishing in Beaver Creek and roaming
through the forest hunting the deer and the wild boar and the timber wolf. Often spending weeks at a time in
the solitary wilderness with no companions but my rifle, hunting knife, and a small hatchet that I carried in my
belt in all of my wilderness wanderings.
On these long hunting trips I met and became acquainted with many of the Cherokee India ns, hunting with
them by day and sleeping around their camp fires by night. I learned to speak their language, and they taught
me the arts of trailing and building traps and snares. On one of my long hunts in the fall of 1829, I found a
young Cherokee who had been shot by a roving band of hunters and who had eluded his pursuers and
concealed himself under a shelving rock. Weak from loss of blood, the poor creature was unable to walk and
almost famished for water. I carried him to a spring, bathed and bandag ed the bullet wound, and built a
shelter out of bark peeled from a dead chestnut tree. I nursed and protected him feeding him on chestnuts
and toasted deer meat. When he was able to travel I accompanied him to the home of his people and
remained so long that I was given up for lost. By this time I had become an expert rifleman and fairly good
archer and a good trapper and spent most of my time in the forest in quest of game.
The removal of Cherokee Indians from their life long homes in the year of 1838 found me a young man in the
prime of life and a Private soldier in the American Army. Being acquainted with many of the Indians and able
to fluently speak their language, I was sent as interpreter into the Smoky Mountain Country in May, 1838, and
witnessed the execution of the most brutal order in the History of American Warfare. I saw the helpless
Cherokees arrested and dragged from their homes, and driven at the bayonet point into the stockades. And in
the chill of a drizzling rain on an October morning I s aw them loaded like cattle or sheep into six hundred and
forty-five wagons and started toward the west.
One can never forget the sadness and solemnity of that morning. Chief John Ross led in prayer and when the
bugle sounded and the wagons started rolling many of the children rose to their feet and waved their little
hands good-by to their mountain homes, knowing they were leaving them forever. Many of these helpless
people did not have blankets and many of them had been driven from home barefooted.
On the morning of November the 17th we encountered a terrific sleet and snow storm with freezing
temperatures and from that day until we reached the end of the fateful journey on March the 26th, 1839, the
sufferings of the Cherokees were awful. The trail of the exiles was a trail of death. They had to sleep in the
wagons and on the ground without fire. And I have known as many as twenty-two of them to die in one night
of pneumonia due to ill treatment, cold, and exposure. Among this number was the beautiful Christian wife of
Chief John Ross. This noble hearted woman died a martyr to childhood, giving her only blanket for the
protection of a sick child. She rode thinly clad through a blinding sleet and snow storm, developed pneumonia
and died in the still hours of a bleak winter night, with her head resting on Lieutenant Greggs saddle blanket.
I made the long journey to the west with the Cherokees and did all that a Private soldier could do to alleviate
their sufferings. When on guard duty at night I have many times walked my beat in my blouse in order that
some sick child might have the warmth of my overcoat. I was on guard duty the night Mrs. Ross died. When
relieved at midnight I did not retire, but remained around the wagon out of sympathy for Chief Ross, and at
daylight was detailed by Captain McClellan to assist in the burial like the other unfortunates who di ed on the
way. Her unconfined body was buried in a shallow grave by the roadside far from her native home, and the
sorrowing Cavalcade moved on.
Being a young man, I mingled freely with the young women and girls. I have spent many pleasant hours with
them when I was supposed to be under my blanket, and they have many times sung their mountain songs for
me, this being all that they could do to repay my kindness. And with all my association with Indian girls from
October 1829 to March 26th 1839, I did not meet one who was a moral prostitute. They are kind and tender
hearted and many of them are beautiful.
The only trouble that I had with anybody on the entire journey to the west was a brutal teamster by the name
of Ben McDonal, who was using his whip on an old feeble Cherokee to hasten him into the wagon. The sight of
that old and nearly blind creature quivering under the lashes of a bull whip was too much for me. I attempted
to stop McDonal and it ended in a personal encounter. He lashed me across the face, the wire tip on his whip
cutting a bad gash in my cheek. The little hatchet that I had carried in my hunting days was in my belt and
McDonal was carried unconscious from the scene.
I was placed under guard but Ensign Henry Bullock and Private Elkanah Millard had both witnessed the
encounter. They gave Captain McClellan the facts and I was never brought to trial. Years later I met 2nd
Lieutenant Riley and Ensign Bullock at Bristol at John Roberson’s show, and Bullock jokingly reminded me that
there was a case still pending against me before a court martial and wanted to know how much longer I was
going to have the trial put off?
McDonal finally recovered, and in the year 1851, was running a boat out of Memphis, Tennessee.
The long painful journey to the west ended March 26th, 1839, with four-thousand silent graves reaching from
the foothills of the Smoky Mountains to what is known as Indian territory in the West. And covetousness on
the part of the white race was the cause of all that the Cherokees had to suffer. Ever since Ferdinand DeSoto
made his journey through the Indian country in the year 1540, there had been a tradition of a rich gold mine
somewhere in the Smoky Mountain Country, and I think the tradition was true. At a festival at Echota on
Christmas night 1829, I danced and played with Indian girls who were wearing ornaments around their neck
that looked like gold.
In the year 1828, a little Indian boy living on Ward creek had sold a gold nugget to a white trader, and that
nugget sealed the doom of the Cherokees. In a short time the country was overrun with armed brigands
claiming to be government agents, who paid no attention to the rights of the Indians who were the legal
possessors of the country. Crimes were committed that were a disgrace to civilization. Men were shot in cold
blood, lands were confiscated. Homes were burned and the inhabitants driven out by the gold-hungry
brigands.
Chief Junaluska was personally acquainted with President Andrew Jackson. Junaluska had taken 500 of the
flower of his Cherokee scouts and helped Jackson to win the battle of the Horse Shoe, leaving 33 of them dead
on the field. And in that battle Junaluska had drove his tomahawk through the skull of a Creek warrior, when
the Creek had Jackson at his mercy.
Chief John Ross sent Junaluska as an envoy to plead with President Jackson for protection for his people, but
Jackson’s manner was cold and indifferent toward the rugged son of the forest who had saved his life. He met
Junaluska, heard his plea but curtly said, "Sir, your audience is ended. There is nothing I can do for you." The
doom of the Cherokee was sealed. Washington, D.C., had decreed that they must be driven West and their
lands given to the white man, and in May 1838, an army of 4000 regulars, and 3000 volunteer soldiers under
command of General Winfield Scott, marched into the Indian country and wrote the blackest chapter on the
pages of American history.
Men working in the fields were arrested and driven to the stockades. Women were dragged from their homes
by soldiers whose language they could not understand. Children were often separated from their parents and
driven into the stockades with the sky for a blanket and the earth for a pillow. And often the old and infirm
were prodded with bayonets to hasten them to the stockades.
In one home death had come during the night. A little sad-faced child had died and was lying on a bear skin
couch and some women were preparing the little body for burial. All were arrested and driven out leaving the
child in the cabin. I don’t know who buried the body.
In another home was a frail mother, apparently a widow and three small children, one just a baby. When told
that she must go, the mother gathered the children at her feet, prayed a humble prayer in her na tive tongue,
patted the old family dog on the head, told the faithful creature good-by, with a baby strapped on her back
and leading a child with each hand started on her exile. But the task was too great for that frail mother. A
stroke of heart failure relieved her sufferings. She sunk and died with her baby on her back, and her other two
children clinging to her hands.
Chief Junaluska who had saved President Jackson’s life at the battle of Horse Shoe witnessed this scene, the
tears gushing down his cheeks and lifting his cap he turned his face toward the heavens and said, "Oh my God,
if I had known at the battle of the Horse Shoe what I know now, American history would have been differently
written."
At this time, 1890, we are too near the removal of the Cherokees for our young people to fully understand the
enormity of the crime that was committed against a helpless race. Truth is, the facts are being concealed from
the young people of today. School children of today do not know that we are living on lands that were taken
from a helpless race at the bayonet point to satisfy the white man’s greed.
Future generations will read and condemn the act and I do hope posterity will remember that private soldiers
like myself, and like the four Cherokees who were forced by General Scott to shoot an Indian Chief and his
children, had to execute the orders of our superiors. We had no choice in the matter.
Twenty-five years after the removal it was my privilege to meet a large company of the Cherokees in uniform
of the Confederate Army under command of Colonel Thomas. They were encamped at Zollicoffer and I went
to see them. Most of them were just boys at the time of the removal but they instantly recognized me as "the
soldier that was good to us". Being able to talk to them in their native language I had an enjoyable day with
them. From them I learned that Chief John Ross was still ruler in the nation in 1863. And I wonder if he is still
living? He was a noble-hearted fellow and suffered a lot for his race.
At one time, he was arrested and thrown into a dirty jail in an effort to break his spirit, but he remained true
to his people and led them in prayer when they started on their exile. And his Christian wife sacrificed her life
for a little girl who had pneumonia. The Anglo-Saxon race would build a towering monument to perpetuate
her noble act in giving her only blanket for comfort of a sick child. Incidentally the child recovered, but Mrs.
Ross is sleeping in a unmarked grave far from her native Smoky Mountain home.
When Scott invaded the Indian country some of the Cherokees fled to caves and dens in the mountains and
were never captured and they are there today. I have long intended going there and trying to find them but I
have put off going from year to year and now I am too feeble to ride that far. The fleeing years have come and
gone and old age has overtaken me. I can truthfully say that neither my rifle nor my knife were stained with
Cherokee blood.
I can truthfully say that I did my best for them when they certainly did need a friend. Twenty-five years after
the removal I still lived in their memory as "the soldier that was good to us ".
However, murder is murder whether committed by the villain skulking in the dark or by uniformed men
stepping to the strains of martial music.
Murder is murder, and somebody must answer. Somebody must explain the streams of blood that flowed in
the Indian country in the summer of 1838. Somebody must explain the 4000 silent graves that mark the trail of
the Cherokees to their exile. I wish I could forget it all, but the picture of 645 wagons lumbering over the
frozen ground with their cargo of suffering humanity still lingers in my memory.
Let the historian of a future day tell the sad story with its sighs, its tears and dying groans. Let the great Judge
of all the earth weigh our actions and reward us according to our work.
Children - Thus ends my promised birthday story. This December the 11th 1890.
-------------------------------------------------------------------------------Copyright © 1996 The Cherokee Cultural Society of Houston
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Post-Trial Events
“You cannot remain where you now are.…”
Chief John Ross led the Cherokee opposition to removal. Portrait by Charles Bird King from History of the
Indian Tribes of North America (McKenney and Hall, c. 1843). About the painting
The Cherokees might have been able to hold out against renegade settlers for a long time. But two
circumstances combined to severely limit the possibility of staying put. In 1828 Andrew Jackson became
president of the United States. In 1830 — the same year the Indian Removal Act was passed — gold was found
on Cherokee lands. There was no holding back the tide of Georgians, Carolinians, Virginians, and Alabamians
seeking instant wealth. Georgia held lotteries to give Cherokee land and gold rights to whites. The state had
already declared all laws of the Cherokee Nation null and void after June 1, 1830, and also prohibited
Cherokees from conducting tribal business, contracting, testifying against whites in court, or mining for gold.
Cherokee leaders successfully challenged Georgia in the U.S. Supreme Count, but President Jackson refused to
enforce the Court’s decision.
Most Cherokees wanted to stay on their land. Chief Womankiller, an old man, summed up their views:
My sun of existence is now fast approaching to its setting, and my aged bones will soon be laid underground,
and I wish them laid in the bosom of this earth we have received from our fathers who had it from the Great
Being above.6
Yet some Cherokees felt that it was futile to fight any longer. By 1832, Major Ridge, his son John, and nephews
Elias Boudinot and Stand Watie had concluded that incursions on Cherokee lands had become so severe, and
abandonment by the federal government so certain, that moving was the only way to survive as a nation. A new
treaty accepting removal would at least compensate the Cherokees for their land before they lost everything.
These men organized themselves into a Treaty Party within the Cherokee community. They presented a
resolution to discuss such a treaty to the Cherokee National Council in October 1832. It was defeated. John
Ross, now Principal Chief, was the voice of the majority opposing any further cessions of land. The two men
who had worked so closely together were now bitterly divided.
The U.S. government submitted a new treaty to the Cherokee National Council in 1835. President Jackson sent
a letter outlining the treaty terms and urging its approval:
My Friends: I have long viewed your condition with great interest. For many years I have been acquainted with
your people, and under all variety of circumstances in peace and war. You are now placed in the midst of a
white population. Your peculiar customs, which regulated your intercourse with one another, have been
abrogated by the great political community among which you live; and you are now subject to the same laws
which govern the other citizens of Georgia and Alabama.
I have no motive, my friends, to deceive you. I am sincerely desirous to promote your welfare. Listen to me,
therefore, while I tell you that you cannot remain where you now are. Circumstances that cannot be controlled,
and which are beyond the reach of human laws, render it impossible that you can flourish in the midst of a
civilized community. You have but one remedy within your reach. And that is, to remove to the West and join
your countrymen, who are already established there. And the sooner you do this the sooner you will commence
your career of improvement and prosperity.7
John Ross persuaded the council not to approve the treaty. He continued to negotiate with the federal
government, trying to strike a better bargain for the Cherokee people. Each side — the Treaty Party and Ross’s
supporters — accused the other of working for personal financial gain. Ross, however, had clearly won the
passionate support of the majority of the Cherokee nation, and Cherokee resistance to removal continued.
In December 1835, the U.S. resubmitted the treaty to a meeting of 300 to 500 Cherokees at New Echota. Older
now, Major Ridge spoke of his reasons for supporting the treaty:
I am one of the native sons of these wild woods. I have hunted the deer and turkey here, more than fifty years. I
have fought your battles, have defended your truth and honesty, and fair trading. The Georgians have shown a
grasping spirit lately; they have extended their laws, to which we are unaccustomed, which harass our braves
and make the children suffer and cry. I know the Indians have an older title than theirs. We obtained the land
from the living God above. They got their title from the British. Yet they are strong and we are weak. We are
few, they are many. We cannot remain here in safety and comfort. I know we love the graves of our fathers. We
can never forget these homes, but an unbending, iron necessity tells us we must leave them. I would willingly
die to preserve them, but any forcible effort to keep them will cost us our lands, our lives and the lives of our
children. There is but one path of safety, one road to future existence as a Nation. That path is open before you.
Make a treaty of cession. Give up these lands and go over beyond the great Father of Waters.8
Twenty men, none of them elected officials of the tribe, signed the treaty, ceding all Cherokee territory east of
the Mississippi to the U.S. in exchange for $5 million and new homelands in Indian Territory. Major Ridge is
reported to have said that he was signing his own death warrant.
The Treaty of New Echota was widely protested by Cherokees and by whites. The tribal members who opposed
relocation considered Major Ridge and the others who signed the treaty traitors. After an intense debate, the
U.S. Senate approved the Treaty of New Echota on May 17, 1836, by a margin of one vote. It was signed into
law on May 23. As John Ross worked to negotiate a better trea ty, the Cherokees tried to sustain some sort of
normal life — even as white settlers carved up their lands and drove them from their homes. Removal had
become inevitable. It was simply a matter now of how it would be accomplished.
“Every Cherokee man, woman or child must be in motion…”
For two years after the Treaty of New Echota, John Ross and the Cherokees continued to seek concessions from
the federal government, which remained disorganized in its plans for removal. Only the eager settlers with their
eyes on the Cherokee lands moved with determination. At the end of December 1837, the government warned
the Cherokee that the clause in the Treaty of New Echota requiring that they should “remove to their new
homes within two years from the ratification of the treaty” would be enforced. 9 In May, President Van Buren
sent Gen. Winfield Scott to get the job done. On May 10, 1838, General Scott issued the following
proclamation:
Cherokees! The President of the United States has sent me, with a powerful army, to cause you, in obedience to
the Treaty of 1835, to join that part of your people who are already established in prosperity, on the other side
of the Mississippi. . . . The full moon of May is already on the wane, and before another shall have passed away,
every Cherokee man, woman and child . . . must be in motion to join their brethren in the far West.10
Federal troops and state militias began to move the Cherokees into stockades. In spite of warnings to troops to
treat them kindly, the roundup proved harrowing. A missionary described what he found at one of the collection
camps in June:
The Cherokees are nearly all prisoners. They have been dragged from their houses, and encamped at the forts
and military posts, all over the nation. In Georgia, especially, multitudes were allowed no time to take any thing
with them except the clothes they had on. Well- furnished houses were left prey to plunderers, who, like hungry
wolves, follow in the trail of the captors. These wretches rifle the houses and strip the helpless, unoffending
owners of all they have on earth. 11
Three groups left in the summer, traveling from present-day Chattanooga by rail, boat, and wagon, primarily on
the water route, but as many as 15,000 people still awaited removal. Sanitation was d eplorable. Food, medicine,
clothing, even coffins for the dead, were in short supply. Water was scarce and often contaminated. Diseases
raged through the camps. Many died.
Those travelling over land were prevented from leaving in August due to a summer drought. The first
detachments set forth only to find no water in the springs and they returned back to their camps. The remaining
Cherokees asked to postpone removal until the fall. The delay was granted, provided they remain in the camps
until travel resumed. The Army also granted John Ross’s request that the Cherokees manage their own removal.
The government provided wagons, horses, and oxen; Ross made arrangements for food and other necessities. In
October and November, 12 detachments of 1,000 men, women, children, including more than 100 slaves, set off
on an 800 mile-journey overland to the west. Five thousand horses, and 654 wagons, each drawn by 6 horses or
mules, went along. Each group was led by a respected Cherokee leader and accompanied by a doctor, and
sometimes a missionary. Those riding in the wagons were usually only the sick, the aged, children, and nursing
mothers with infants.
The northern route, chosen because of dependable ferries over the Ohio and Mississippi Rivers and a welltravelled road between the two rivers, turned out to be the more difficult. Heavy autumn rains and hundreds of
wagons on the muddy route made roads nearly impassable; little gra zing and game could be found to
supplement meager rations. Two-thirds of the Cherokees were trapped between the ice-bound Ohio and
Mississippi rivers during January. A traveler from Maine happened upon one of the caravans in Kentucky:
We found the road literally filled with the procession for about three miles in length. The sick and feeble were
carried in waggons . . . a great many ride horseback and multitudes go on foo t—even aged females, apparently
nearly ready to drop into the grave, were traveling with heavy burdens attached to the back—on the sometimes
frozen ground, and sometimes muddy streets, with no covering for the feet except what nature had given them. 12
A Cherokee survivor later recalled:
Long time we travel on way to new land. People feel bad when they leave Old Nation. Women cry and made
sad wails. Children cry and many men cry, and all look sad like when friends die, but they say nothing and just
put heads down and keep on go towards West. Many days pass and people die very much. 13
In 1972, Robert K. Thomas, a professor of anthropology from the University of Chicago and an elder in the
Cherokee tribe, told the following story to a few friends:
Let me tell you this. My grandmother was a little girl in Georgia when the soldiers came to her house to take her
family away. . . . The soldiers were pushing her family away from their land as fast as they could. She ran back
into the house before a soldier could catch her and grabbed her [pet] goose and hid it in her apron. Her parents
knew she had the goose and let her keep it. When she had bread, she would dip a little in water and slip it to the
goose in her apron.
Well, they walked a long time, you know. A long time. Some of my relatives didn’t make it. It was a bad winter
and it got really cold in Illinois. But my grandmother kept her goose alive.
One day they walked down a deep icy gulch and my grandmother could see down below her a long white road.
No one wanted to go over the road, but the soldiers made them go, so they headed across. When my
grandmother and her parents were in the middle of the road, a great black snake started hissing down the river,
roaring toward the Cherokees. The road rose up in front of her in a thunder and came down again, and when it
came down all of the people in front of her were gone, including her parents.
My grandmother said she didn’t remember getting to camp that night, but she was with her aunt and uncle. Out
on the white road she had been so terrified, she squeezed her goose hard and suffocated it in her apron, but her
aunt and uncle let her keep it until she fell asleep. During the night they took it out of her apron. 14
On March 24, 1839, the last detachments arrived in the west. Some of them had left their homeland on
September 20, 1838. No one knows exactly how many died during the journey. Missionary doctor Elizur Butler,
who accompanied one of the detachments, estimated that nearly one fifth of the Cherokee population died. The
trip was especially hard on infants, children, and the elderly. An unknown number of slaves also died on the
Trail of Tears. The U.S. government never paid the $5 million promised to the Cherokees in the Treaty of New
Echota.
http://www.learnnc.org/lp/editions/nchist-newnation/4548#noteref10
ON THIS DAY IN HISTORY (the fate of Major John Ridge)
JUNE 22:
June 22, 1839: Elias Boudinot, first editor of the Cherokee Phoenix, Chief Major Ridge
(Kahnungdaclageh) and his son, John Ridge (Skahtlelohskee ) are me mbe rs of the Cherokee "Treaty
Party". They have generated many enemies by their stand agreeing to the removal of the Cherokees from
their lands east of the Mississippi river. They signed the peace treaty which gave away Cherokee lands
east of the Mississippi River. They moved to Indian Territory (Oklahoma) with the rest of the Cherokee
Nation. Today, early in the morning, John Ridge will be dragged from his bed, and stabbed to death.
Chief Major Ridge will be shot and killed at 10:00 am in another part of the reservation. Late r that day,
Elias Boudinot will also be stabbed and hacked to death. These murders were committed by Cherokees
for what they felt was their treasonous betrayal of the nation. A Cherokee law, which Chief Ridge helped
to make, gave the death penalty to any Cherokee which sold or gave away Cherokee lands without the
majority of the tribe's permission. These deaths were conside red the execution of that law. Chief Stand
Watie, brother to Elias, and nephe w to Major Ridge, managed to avoid the warriors who planned to kill
him today.
http://nativene wsonline.org/history/hist0622.html